(navigation image)
Home American Libraries | Canadian Libraries | Universal Library | Community Texts | Project Gutenberg | Children's Library | Biodiversity Heritage Library | Additional Collections
Search: Advanced Search
Anonymous User (login or join us)
Upload
See other formats

Full text of "International law situations with solutions and notes, 1933"

NAVAL WAR COLLEGE 



International Law 
Situations 



WITH SOLUTIONS AND NOTES 



1933 



$ 



UNITED STATES 

GOVERNMENT PRINTING OFFICE 

WASHINGTON : 1934 



For sale by the Superintendent of Documents. Washington. D.C Price $1.00 (cloth) 



PREFACE 



This volume of International Law Situations for 1933 
has, as in recent years, been prepared by George Grafton 
Wilson, LL.D., professor of international law at Harvard 
University. It covers topics upon which opinion has been 
changing and which have been the subject of discussion 
by the War College Class of 1934. The method followed 
has been to propound situations for consideration by the 
officers, members of the class, and after critical discussion 
to organize the material for publication. The conclusions 
reached are in no way authoritative but the notes afford 
a convenient survey of the course of thinking upon the 
subjects presented in the situations. 

In order to increase the usefulness of this publication, 
criticisms and suggestions covering timely topics for dis- 
cussion will be welcomed by the War College. 

L. MoNamee, 
Rear Admiral United States Navy, 

President Naval War College. 

June 30, 1934. 



ii 



CONTENTS 

Page 

Situation I. — Contraband and blockade I 

Solution (a) and (6) 1 

Notes: 

Earl ier discussions of contraband 1 

Early attitude toward contraband 2 

Opinion of Grotius 4 

Attitude of United States 5 

American treaties and contraband 6 

Declaration of London lists, 1909-13 7 

Early World War changes in contraband lists 10 

Disappearance of contraband distinctions 16 

The Kim and three other ships, 1915 20 

Destination 21 

Direct interference with neutral trade 22 

Exempt articles " 23 

Hospital supplies 23 

Contraband distinctions 25 

Early blockades 28 

Declaration of Paris, 1856 28 

Declaration of London and blockade 29 

American views 30 

World War discussions 31 

Proclaimed blockades in World War 36 

Export prohibitions and embargoes 37 

Belligerent embargoes 38 

Retaliation 39 

Retaliation measures, 1914 41 

Summary 44 

Solution (a) and (6) 45 

Situation II. — Independent Philippine Islands 47 

Solution 47 

1. (a), (6), (c), and (d) 47 

2. (a), (6), (c), and (d) 48 

Notes: 

Independence of Philippine Islands 48 

Independence and neutralization 49 

N eutralization agreements 49 

N eutralization 49 

m 



IV CONTENTS 

Situation II. — Independent Philippine Islands — Continued 

Notes — Continued p age 

Belgian position, 1914 51 

Neutralization of the Philippine Islands 54 

American commitments in the Philippines 55 

Neutralization of Panama Canal 56 

Neutralization of Aaland Islands, 1921 57 

Civil and military aircraft 58 

Seaplanes and neutral waters 59 

German protest to United States, 1915 61 

Analogy of aerial and maritime rules 62 

Due diligence as to aircraft 63 

Naval War College opinion, 1912 63 

Hague rules, 1923 64 

Dependent aircraft 65' 

Aircraft over neutral jurisdiction 66 

Internment 67 

Aircraft and outbreak of World War 67 

Proclamation of United States, February 28, 1918- 68 

Stpaight 's opinion 68 

- The 24-hour rule 69 

Resume" 70 

Solution 72 

1. (a), (b), (c), and (d) 72 

2. (a), (6), (c), and (d) 72 

Situation III. — Straits in peace and war 73 

Solution 74 

1. In time of peace: (a), (6), and (c) 74 

2. In time of war: (a), (6), and (c) 74 

Notes: 

Strained relations 74 

The Pact of Paris 75 

Self-defense and treaties 78 

Maritime jurisdiction in general 79 

Maritime jurisdiction, customs 80 

Straits 82 

Jurisdiction over straits 84 

Black Sea Straits 84 

Straits of Magellan 86 

Decrees of Chile, 1914 87 

League of Nations Committee and straits 88 

Comments on proposed Article 6 89 

International Law Association, 1926 89 

Japanese Branch of the International Law Asso- 
ciation 90 



CONTENTS V 

Situation III. — Straits in peace and war — Continued 

Notes — Continued Page 

Closure of ports 91 

Closure of straits 92 

Declaration of war 92 

Reasons for declaring war_ : 94 

Brazilian rules, 1933 94 

Opening of hostilities 95 

Making Hague Convention III, 1907 97 

Radio in time of peace 98 

Radio in war 99 

Mine laying 99 

Mines in World War 100 

Proposals of the United States, 1915 104 

Summary of the attitude of the United States 105 

Resume 107 

Solution 108 

1. In time of peace: (a), (&), and (c) 108 

2. In time of war: (a), (6), and (c) 108 

Appendixes: 

1. Convention to Frame Constitution for Philippine 

Islands. Janary 17, 1933 111 

2. Convention to Frame Constitution for Philippine 

Islands. March 24, 1924 127 



Situation I 
CONTRABAND AND BLOCKADE 

States X and Y are at war. Other states are neutral. 

(a) State X declares that all distinction between con- 
ditional and absolute contraband is abolished and that 
all goods bound for Y will be treated as contraband. 

(b) State Y declares all ports of X blockaded and 
maintains a line 3 miles off the coast of state D to pre- 
vent vessels passing up the river Dana which is the sole 
navigable waterway through state D to the capital of 
state X. 

What are the rights of the belligerents and of the 
neutrals ? 

SOLUTION 

« 

(a) State X may declare all distinction between abso- 
lute and conditional contraband abolished, but this does 
not make all goods contraband nor does it give to state 
X a right to treat all articles bound for Y as contraband. 

(b) State Y may not lawfully maintain a blockade of 
the ports of state X to which there is access only through 
a navigable river of neutral state D; nor may state Y 
prevent vessels from entering the river Dana, though it 
may seize vessels outside neutral jurisdiction when trans- 
porting prohibited goods having an ultimate enemy 
destination. 

NOTES 

Earlier discussions of contraband. — Contraband has 
often been the subject of discussion at the Naval War 

1 



Z CONTRABAND AND BLOCKADE 

College in past years. 1 From these discussions it will be 
evident that opinions of different states have from time 
to time changed. In general, though not in every case, 
belligerents have been inclined to extend the list of con- 
traband and neutrals have endeavored to restrict the 
list. When the maintenance, of blockade is easy, the 
contraband list might be short; and when blockade was 
difficult or impossible, the list would be extended. The 
idea of contraband is so old that there are many examples 
of diversity in practice. 

Early attitude toward contraband. — The word contra- 
band, Latin contrabandum, implied disregard of a de- 
cree or prohibition. The word was used in early times 
in deferring to domestic restrictions usually upon trade 
in named articles as in regard to trade in salt which often 
was a government monopoly. Later prohibitions were 
issued restricting within specified areas trade in ma- 
terials which might be of use in war. 

The prohibition on export of arms, an idea receiving 
particular attention again in the twentieth century, was 
common in Roman and Byzantine periods when it was 
extended to supplies which might be serviceable to pos- 
sible enemies. At times religious penalties were pre- 
scribed by the early church for those who furnished war 
materials to infidels. In these instances the measures 
taken were domestic or applied to those under the au- 
thority of the source of the prohibitions and the prohi- 
bitions might be applied both in time of peace and in time 
of war. Kings of England in the fourteenth century is- 
sued prohibitions, sometimes in regard to furnishing 
articles to nationals of named states and sometimes in 
regard to furnishing specified articles to any foreigner. 
England also made treaties in this century prohibiting 
the supplying of specified articles under penalty of 
forfeiture to the king (Edward III, 1370). 



1 For references, see General Index to International Law Situations, 
Topics, Discussions, Documents, and Decisions, Vols. I to XXX, 1901-30. 



EARLY ATTITUDE ON CONTRABAND 6 

Gradually the prohibitions aimed at regulating domes- 
tic trade began to extend to the activities of foreign mer- 
chants in time of war. This extension created the de- 
mand that for the security of traders the list of prohib- 
ited areas should be made known either by previous 
treaty agreement or by special proclamation, and such 
action became usual from the seventeenth century. The 
early enumerations were not based on any uniform prin- 
ciple but were often determined by political or other 
motives. 

It was easy to extend the domestic prohibition of 
furnishing certain goods to certain areas or to infidels 
by analogy to the furnishing of such goods to enemies. 

As belligerents would have no authority over acts 
of traders within neutral jurisdiction, they began to 
seize goods of the nature of contraband when these 
were outside of the immediate control of the neutral 
state, as in transit on the high sea. Here there would 
be a degree of conflict between the rights of the neu- 
tral to protect the shipping under its national flag and 
the right of the belligerent to prevent the delivery to 
his opponent of goods which might be used for his de- 
feat or injury. The right of the belligerent was to a 
degree gradually conceded as dominant over the right 
of the neutral trader, and the belligerent assumed the 
right to enumerate by proclamation, or otherwise to 
determine, what should be regarded as under the ban. 

The furnishing of contraband was, at first, regarded 
as an act for which the state should be held responsible. 
Gradually the problem of supplying of contraband by 
subjects of neutral states gave rise to controversies. At- 
tempts were made to extend to states responsibility for 
acts of their subjects. The discussions of these topics 
were often by theologians because prohibitions had been 
against furnishing contraband to infidels and the course 
of argumentation, differed from modern discussions 
though involving like principles. This was especially 
true of the fourteenth and fifteenth centuries. 



4 CONTRABAND AND BLOCKADE 

In a posthumous book of Gentilis (1552-1608), the 
mingling of the modern and earlier attitude is shown. 
The negative aspect of the Golden Rule " that one should 
not do unto others what he would not that they should 
do to him " was emphasized. Gentilis quotes the civil 
laws : 

" Let no one have the power to transport wine, oil, or any- 
liquid to heathendom even to give them a taste, to say nothing 
of satisfying the demands of trade." " Let no one dare to sell 
to alien heathen * * * coats of mail, shields, bows, arrows, 
broadswords, swords, or arms of any other sort whatsoever. 
Let absolutely no weapons be retailed to them by anyone, and 
no iron at all, whether already made up or not, for it would be 
harmful to the Roman Empire, and would approach treason 
to furnish the heathen, who ought to be without equipment, with 
weapons to make them stronger. But if anyone shall have sold 
any kind of arms anywhere to alien heathen of any nation what- 
soever in violation of the interdicts of our holy religion, we 
decree that all his goods be straightway confiscated, and that 
he too suffer capital punishment." (Gentilis, Hispanicae Advo- 
cationis, Bk. I, Chap. XX.) 

Gentilis extends these principles in the sixteenth cen- 
tury and takes up many of the questions arising from 
destination, proportion, and ownership of the cargo. 

The neutral began to demand that the evidence that 
the trade would be dangerous to the belligerent must 
also be clear not only from the nature of the goods 
themselves which might, if going to another neutral, be 
innocent, but that the goods if liable to capture must 
have an enemy destination. The nature of the goods 
and the destination thus became early determining fac- 
tors in liability for contraband. 

Opinion of Grotius. — Grotius (1583-1645) in his 
epoch-marking book, De jure belli ac pads, 1625, looking 
backward and surveying earlier practices, said: 

But there often arises the question, What is permissible 
against those who are not enemies, or do not want to be called 
enemies, but who furnish our enemies with supplies? For we 
know that this subject has been keenly debated in both ancient 



AMERICAN ATTITUDE 5 

and modern times, since some champion the relentlessness of 
warfare and others the freedom of commercial relations. 

First, we must make distinctions with reference to the things 
supplied. There are some things, such as weapons, which are 
useful only in war; other things which are of no use in war, 
as those which minister to pleasure; and others still which are 
of use both in time of war and at other times, as money, pro- 
visions, ships, and naval equipment. (Carnegie Endowment for 
International Peace, Grotius, " De Jure Belli ac Pacis ", Vol. II, 
Book III, Chap. I, V, p. 601.) 

In this chapter Grotius shows how questions in regard 
to these three classes of goods have been regarded both 
in early practice and in law. He quotes Seneca (3 
B.C.-65 A.D.) : 

Money, by means of which a satellite may be kept in service, 
I shall not supply. If he shall desire marbles and robes, that 
which his luxurious taste amasses will harm no one ; soldiery 
and arms I shaft not furnish. If, as a great favour, he seeks 
craftsmen of the stage and things which may soften his savagery, 
I shall gladly proffer them. To him to whom I would not send 
triremes or ships with bronze rams, I shall send pleasure craft, 
and sleeping-barges, and other follies of kings who revel on the 
sea. "On Benefits", VII, xx. Car (Ibid, p. 602). 

Grotius set out also that the practices had not been 
consistent among different states or at different times 
in the same state. 

Attitude of United States. — Even before the American 
colonies became independent, the matter of treatment of 
goods of the nature of contraband was considered in the 
Continental Congress. (Ill Journals 371-375, 437; IV 
Ibid, 229-232; 253-254; V Ibid, 768.) Some of these 
documents use the word contraband and refer to " pro- 
hibited or contraband goods." In general during the 
eighteenth century the doctrine of " free ships, free 
goods, except contraband of war " met with growing 
favor and many added " free goods always free." 

The lists such as in the treaty with France, February 
6, 1778, vary, but cover most of the articles later included 
in the categories of absolute and conditional contraband 
though no such distinction is there made. 



6 CONTRABAND AND BLOCKADE 

The instructions issued in 1780 to commanders of 
private armed vessels having commissions or letters of 
marque and reprisal enjoined them to take care " not to 
infringe or violate the laws of nations, or the laws of 
neutrality ", and not to interfere with vessels of allies 
unless they were " employed in carrying contraband 
goods or soldiers to our enemies." 

American treaties and contraband. — The United States 
entered into about 25 treaties containing provisions 
relating to contraband during the nineteenth century. 
Some of the treaties provided that " in general, whatever 
is comprised under the denomination of arms and mili- 
tary stores, of what description soever, shall be deemed 
objects of contraband." (Prussia, 1828.) Others, as the 
treaty with Brazil, 1828, specifically enumerated con- 
traband. 

Article XVI. This liberty of commerce and navigation shall 
extend to all kinds of merchandises, excepting those only which 
are distinguished by the name of contraband ; and under this 
name of contraband or prohibited goods shall be comprehended — 

1st. Cannons, mortars, howitzers, swivels, blunderbusses, mus- 
kets, fuzees, rifles, carbines, pistols, pikes, swords, sabres, lances, 
spears, halberds and grenades, bombs, powder, matches, balls and 
all other things belonging to the use of these arms. 

2d. Bucklers, helmets, breast plates, coats of mail, infantry 
belts and clothes made up in the form and for a military use. 

3d. Cavalry belts, and horses with their furniture. 

4th. And generally all kinds of arms and instruments of iron, 
steel, brass and copper or of any other materials manufactured, 
prepared and formed expressly to make war by sea or land. 

Article XVII. All other merchandise and things not compre- 
hended in the articles of contraband, expressly enumerated and 
classified as above, shall be held and considered as free and sub- 
jects of free and lawful commerce, so that they may be carried 
and transported in the freest manner by both the contracting 
parties, even to places belonging to an enemy, excepting only 
those places which are at that time besieged or blockaded ; and, 
to avoid all doubt in this particular, it is declared that those 
places are only besieged or blockaded which are actually attacked 
by a force capable of preventing the entry of the neutral. (8 U.S. 
Statutes, Part II, pp. 390, 394.) 



DECLARATION OF LONDON 7 

Other treaties with South American states contained 
similar provisions. 

Declaration of London lists, 1909-14. — Early in the 
World War the belligerents showed a disposition to adopt 
the list as set forth in the unratified Declaration of Lon- 
don of 1909. The list of absolute contraband was, 

(1.) Arms of all kinds, including arms for sporting purposes, 
and their unassembled distinctive parts. 

(2.) Projectiles, charges, and cartridges of all kinds, and their 
unassembled distinctive parts. 

(3.) Powder and explosives specially adapted for use in war. 

(4.) Gun-carriages, caissons, limbers, military wagons, field 
forges, and their unassembled distinctive parts. 

(5.) Clothing and equipment of a distinctively military char- 
acter. 

(6.) All kinds of harness of a distinctively military character. 

(7.) Saddle, draught, and pack animals suitable for use in war. 

(8.) Articles of camp equipment, and their unassembled dis- 
tinctive parts. 

(9.) Armor plates. 

(10.) Warships and boats and their unassembled parts spe- 
cially distinctive as suitable for use only in a vessel of war. 

(11). Implements and apparatus made exclusively for the manu- 
facture of munitions of war, for the manufacture or repair of 
arms, or of military material for use on land or sea. (1909 Naval 
War College, International Law Topics, p. 59.) 

This list of absolute contraband was the sarnie as that 
upon which agreement had been reached at the Second 
Hague Peace Conference in 1907. 

The subject of conditional contraband was considered 
at the same conference but " lack of time and the com- 
plication of interests involved did not admit of the elabo- 
ration at present [1907] of a text adopted by all." (1 
Proceedings of the Hague Peace Conference, p. 259.) 
At this Second Peace Conference, the American naval 
delegate, Admiral Sperry, former president of the Naval 
War College, and the British seemed to be favorable to 
the exclusion of any list of conditional contraband. 
Admiral Sperry also suggested : 



8 CONTRABAND AND BLOCKADE 

That a paragraph be added to the list already approved, stipulat- 
ing that no article is to be included in this list which is not in- 
tended exclusively for military use, and moreover that trade in 
any article whatever not legally included in the list shall never 
be prohibited as the result of a state of war. (Ibid, p. 1116.) 

At the London Naval Conference, 1908-09, suggestions 
from the 10 leading maritime states varied in regard to 
conditional contraband. Some states favored the aboli- 
tion of the category of conditional contraband as in the 
case of Spain and The Netherlands, and some made 
propositions of a general character covering articles 
which might be useful in peace and war. After much 
discussion in the Conference a list of conditional con- 
traband was also drawn up and embodied in the follow- 
ing terms : 

Akticle 24. The following articles and materials susceptible of 
us^e in war as well as for purposes of peace, are without notice, 
regarded as contraband of war, under the name of conditional 
contraband : 

(1.) Food. 

(2.) Forage and grain suitable for feeding animals. 

(3.) Clothing and fabrics for clothing, boots and shoes, suitable 
for military use. 

(4.) Gold and silver in coin or bullion; paper money. 

(5.) Vehicles of all kinds available for use in war, and their 
unassembled parts. 

(6.) Vessels, craft and boats of all kinds, floating docks, parts 
of docks, as also their unassembled parts. 

(7.) Fixed railway material and rolling-stock, and material 
for telegraphs, radio telegraphs, and telephones. 

(8) Balloons and flying machines and their unassembled dis- 
tinctive parts as also their accessories, articles and materials 
distinctive as intended for use in connection with balloons or 
flying machines. 

(9.) Fuel; lubricants. 

(10.) Powder and explosives which are not specially adapted 
for use in war. 

(11.) Barbed wire as also the implements for placing and 
cutting the same. 

(12.) Horseshoes and horseshoeing materials. 

(13.) Harness and saddlery material. 



DECLARATION OF LONDON 9 

(14.) Binocular glasses, telescopes, chronometers, and all kinds 
of nautical instruments. (1909 Naval War College, International 
Law Topics, p. 63.) 

Provision was made for additions to the above list 
by means of notified declarations in articles 23 and 25 
and for omissions in article 26. In articles 27 and 28 
attempt was made to exempt articles which in general 
are not susceptible of use in war and also certain articles 
which were in a specified free list. Many of the articles 
specifically exempted in 1909 were within a few years 
of special use in war and before 1914 this list was seen 
to be unduly restrictive. 

The Declaration of London of 1909 had been opera- 
tive during the Turco-Italian War in 1911-12 as shown 
in the following dispatch of October 19, 1911. 

By a royal decree of October 13 the following instructions 
were approved in conformity with the principles of the Declara- 
tion of Paris, April 16, 1856, which belligerent countries are 
bound to respect, with the rules of The Hague Conventions of 
October 18, 1907, and of the Declaration of London of February 
26, 1909, which the Government of the King desires to be re- 
spected as well, so far as the provisions of the laws in force 
in the Kingdom allow, although they have not yet been ratified 
by Italy ; and they will serve to regulate the conduct of naval 
commanders in the operations of capture and prize during the 
war. (1912 Naval War College, International Law Situations, 
p. 108.) 

The provisions of the Declaration of London as re- 
gards, absolute and conditional contraband, were before 
1914 regarded as satisfactory in view of the articles 
permitting changes on notification. There was, how- 
ever, understandable criticisms of the list of articles 
enumerated as not to be declared contraband of war. 

There was little criticism of article 29 which provided : 

Neither are the following to be regarded as contraband of 
war : 

(1) Articles and materials serving exclusively for the care 
of the sick and wounded. They may, nevertheless, in case of 
urgent military necessity and subject to the payment of com- 



10 CONTRABAND AND BLOCKADE 

pensation, be requisitioned, if their destination is that specified 
in Article 30. 

(2) Articles and materials intended for the use of the vessel 
in which they are found, as well as those for the use of her 
crew and passengers during the voyage (1909 Naval War Col- 
lege, International Law Topics, p. 71.) 

Many of the provisions of the Declaration of London 
were embodied in national rules before 1914 and while 
some of these remained in force during the World War, 
the provisions relating to contraband because of changes 
in the use of materials and methods of warfare suffered 
wide extensions. 

Early World War changes in contraband lists. — The 
British Government had on August 5, 1914, made known 
that it w T ould regard as contraband the articles named 
as absolute and conditional contraband in the Declara- 
tion of London with the transfer of aircraft from the 
conditional to the absolute list. 

On August 6, 1914, the American Secretary of State 
addressed to the American Ambassadors in the bellig- 
erent states and the Minister to Belgium an inquiry as to 
whether the respective states were " willing to agree that 
the laws of naval warfare laid down by the Declaration 
of London, 1909, shall be applicable to naval warfare 
during the present European conflict, provided that the 
governments with whom " they were or might be at 
war also agree to such application. The Secretary also 
said, " You will further state that this Government be- 
lieves that acceptance of these laws by the belligerents 
would prevent grave misunderstandings which may 
arise as to the relations between belligerent and neutral 
pow T ers. It, therefore, earnestly hopes that this inquiry 
may receive favorable consideration." (1914 U.S. For- 
eign Relations, Supplement, p. 216.) 

Germany, August 10, and Austria-Hungary, August 
13, replied to the effect that they would observe the pro- 
visions of the Declaration of London conditioned upon 
" like observance on the part of the enemy." 



WORLD WAR DISCUSSIONS 11 

As replies were delayed from other states, the Secre- 
tary of State sent another telegram, August 19, pressing 
for reply. The reply from the British Foreign Office 
dated August 22 but received in Washington August 26, 
1914, stated that the British Government had " decided 
to adopt generally the rules of the declaration in ques- 
tion, subject to certain modifications and additions which 
they judge indispensable to the efficient conduct of their 
naval operations." These modifications changed the 
lists of contraband, duration of liability and presump- 
tion of destination as well as other provisions. Russia 
and France followed Great Britain. The Government of 
the United States examined the British propositions 
hoping they might be of such character that the Govern- 
ment could advise general acceptance, but could not 
reach such a conclusion. Nevertheless, in a note of 
September 26, 1914, the Acting Secretary of State wrote : 

* * * The United States stands ready either to accept the 
declaration as a whole, provided all of the belligerents accept 
it, or, to accept it for the period of the war with modifications 
and additions acceptable, on the one hand, to the United States 
and the Netherlands, the two neutral signatories, and, on the 
other hand, to all of the belligerents. 

This Government in seeking general acceptance of the declara 
tion as a code of naval warfare for the present war had in mind 
the adoption of the declaration as a whole and not such part of 
it as might be acceptable to certain belligerents and not to other 
belligerents. It considered that the declaration was to be ap- 
plied as a complete code of which no rule could be ignored or sup- 
plemented, and in so doing it followed Article 65 of the declara- 
tion, which stipulates : " The provisions of the present declaration 
must be treated as a whole and cannot be separated." 

The only reasonable explanation for the inclusion in the dec- 
laration of this requirement is that the instrument is composed 
largely of compromises on the part of the governments repre- 
sented at the conference. Although the declaration is introduced 
with a general statement that " the signatory powers are agreed " 
that the rules contained in the declaration " correspond in sub- 
stance with the generally recognized principles of international 
law ", the proceedings of the conference as well as the documents 
relating to it prove that an agreement on many of the articles 
73500—34 2 



12 CONTRABAND AND BLOCKADE 

was reached through reciprocal concessions. Being conceived in 
compromise and concession the declaration was accepted by the 
Government of the United States at the conference in London 
in the earnest hope that it might finally compose the differences 
which existed as to neutral rights and neutral duties, although 
in so accepting this Government was compelled to abandon cer- 
tain rules of conduct which it has heretofore always maintained. 
As might be expected in a settlement of divergent views and 
practices by mutual concession the Declaration of London con- 
tains provisions both advantageous and disadvantageous to the 
respective interests of neutrals and belligerents. But it is now 
proposed by Great Britain to retain all the provisions favorable 
to belligerents and to recast other provisions so that they will be 
less favorable to neutral interests. The result is a set of rules 
which limits neutrals' rights far more than does the declaration 
itself treated as a whole. War, in any event, bears heavily 
upon a neutral nation. The interruption of its commerce and 
the limitations placed upon its trade are sufficiently burdensome 
under the rules of the Declaration of London. In consenting 
to those rules the Government of the United States made 
great concessions on its part and it does not feel that it can, 
in justice to its own people, go further. It cannot consent to 
the retention of a part of this compromise settlement and to 
the rejection of another part. The adoption of the declaration 
so modified is contrary to the customary procedure incident to 
compromise settlements, to the express provisions of the dec- 
laration itself, and to the spirit which induced its signature. 
(Ibid, p. 227.) 

This note further stated that the British modifications 
struck at accepted neutral rights, created misunderstand- 
ings, revised practices supposed to be abandoned even 
by Great Britain and, if admitted, might place the 
United States in an equivocal position which might im- 
peril the friendly relations with Great Britain. 

In a memorandum of a conference of Acting Secre- 
tary Lansing with the British Ambassador on September 
29, 1914, it is said, 

A discussion of the provisions of the order in council followed 
in which the Ambassador said that he agreed that the order in 
council practically made foodstuffs absolute contraband, which 
was contrary to the British traditional policy as well as. to that 
of the United States. He said that the immediate cause had 



WORLD WAR DISCUSSIONS 13 

been the introduction through Rotterdam in first days of the 
war of large quantities of food supplies for the German army in 
Belgium, and that it seemed absolutely necessary to stop this 
traffic. 

I replied that, while I appreciated that such reasons must 
weigh very heavily with those responsible for the successful con- 
duct of the war, it seemed unfortunate that some other means 
could not have been found to accomplish the desired purpose, 
either by getting the Netherlands to place an embargo on food- 
stuffs and other conditional contraband or by agreeing not to re- 
export such articles. The Ambassador said that he agreed that 
would be much the better way, and that he believed it could 
be done. 

He said that now the chief anxiety seemed to be in regard to 
shipments of copper and petroleum and also of Swedish iron, and 
that the British Government was stopping vessels with such car- 
goes and purchasing them. He suggested that possibly the diffi- 
culty created by the order in council could be removed by re- 
scinding it and adding to the list of absolute contraband petro- 
leum products, copper, barbed wire and other articles of like 
nature now used almost exclusively for war purposes. 

I said that as to this suggestion I could not speak for the 
Government but that it seemed worthy of consideration as it 
might offer a means of getting rid of the order in council which 
certainly menaced the very friendly relations existing if it became 
the subject of discussion by the press. I told him that I did not 
think that the feeling which the order in council would arouse 
when generally understood, would be among the shippers as much 
as among the American public at large ; and that, even if no case 
arose under it, the fact that the British Government had issued 
a decree, which menaced the commercial rights of the United 
States as a neutral, in violation of the generally accepted rules 
of international law, would undoubtedly cause irritation, if not 
indignation, and might change the sentiment of the American 
people, of which Great Britain had no reason to complain at the 
present time. (Ibid., p. 234.) 

There was much interchange of opinion between the 
belligerents and neutrals in regard to contraband. The 
European neutral states being the smaller states were 
often obliged to yield to the terms proposed by the strong 
belligerents. Each belligerent brought forth the argu- 
ment that its extreme action was based on self-defense 
which might justify the setting aside its obligations 
under international law. 



14 CONTRABAND AND BLOCKADE 

The United States, a powerful neutral, in its early 
contentions maintained the attitude of a state about to 
insist upon its neutral rights. Great Britain in a com- 
munication of October 9, 1914, indicated that its list of 
contraband should, subject to certain additions and modi- 
fications, conform to the Declaration of London and that 
it was hoped this list would meet the approval of the 
United States. This proposed list did include under 
absolute contraband rubber and ores which under article 
28 of the Declaration of London had unwisely been 
placed in the list of articles not to be declared contra- 
band of war. . Some equable adjustment between the 
Department of State of the United States and Great 
Britain on the basis of actual war conditions and needs 
seemed to be foreshadowed in early October 1914. On 
October 15, Mr. Walter Hines Page, Ambassador to 
Great Britain, said in a communication to the Secretary 
of State : 

I recommend most earnestly the substantial acceptance of the 
new order in council or our acquiescence with a reservation of 
whatever rights we may have ; and I recommend prompt informa- 
tion to the British Government of such action. (1914 U.S. For- 
eign Relations, Supplement, p. 249.) 

To follow this recommendation would involve aban- 
doning many of the positions which the State Depart- 
ment had recently taken and on October 16 the Depart- 
ment of State sent to the American Ambassador in 
Great Britain a telegram embodying certain new plans. 

The desire of this Government is ■ to obtain from the British 
Government the issuance of an order in council adopting the 
declaration without any amendment whatsoever and to obtain 
from France and Russia like decrees, which they will undoubt- 
edly issue if Great Britain sets the example. Such an adoption 
by the allied Governments will put in force the acceptance of the 
Declaration of London by Germany and Austria, which will thus 
become for all the belligerent powers the code of naval warfare 
during the present conflict. This is the aim of the United States. 

It cannot be accomplished if the declaration is changed in any 
way as Germany and Austria would not give their consent to a 
change. 



WOELD WAR DISCUSSIONS 15 

In the frequent informal and confidential conversations which 
have taken place here and in the admirable frankness with which 
Sir Edward Grey has stated the reasons for the action which 
Great Britain has deemed it necessary to take in regard to the 
declaration, this Government feels that it fully understands and 
appreciates the British position, and is not disposed to place 
obstacles in the way of the accomplishment of the purposes which 
the British representatives have so frankly stated. 

The confidence thus reported in this Government makes it 
appreciate more than ever the staunch friendship of Great Britain 
for the United States, which it hopes always to deserve. 

This Government would not feel warranted in offering any sug- 
gestion to the British Government as to a course which would meet 
the wishes of this Government and at the same time accomplish 
the ends which Great Britain seeks, but you might in the strictest 
confidence intimate to Sir Edward Grey the following plan, at the 
same time stating very explicitly that it is your personal sugges- 
tion and not one for which your Government is responsible. 

Let the British Government issue an order in council accepting 
the Declaration of London without change or addition, and re- 
pealing all previous conflicting orders in council. 

Let this order in council be followed by a proclamation adding 
articles to the lists of absolute and conditional contraband by 
virtue of the authority conferred by Articles 23 and 25 of the 
declaration. 

Let the proclamation be followed by another order in council, 
of which the United States need not be previously advised, declar- 
ing that, when one of His Majesty's Principal Secretaries of State 
is convinced that a port or the territory of a neutral country is 
being used as a base for the transit of supplies for an enemy gov- 
ernment a proclamation shall issue declaring that such port or 
territory has acquired enemy character in so far as trade in 
contraband is concerned and that vessels trading therewith shall 
be thereafter subject to the rules of the declaration governing 
trade to enemy's territory. 

It is true that the latter order in council would be based on a 
new principle. The excuse would be that the Declaration of Lon- 
don failing to provide for such an exceptional condition as exists, 
a belligerent has a right to give a reasonable interpretation to 
the rules of the declaration so that they will not leave him help- 
less to prevent an enemy from obtaining supplies for his military 
forces although the belligerent may possess the power and would 
have the right to do so if the port or territory was occupied by 
the enemy. 



16 CONTRABAND AND BLOCKADE 

When the last-mentioned order in council is issued, I am con- 
vinced that a full explanation of its nature and necessity would 
meet with liberal consideration by this Government and not be 
the subject of serious objection. 

I repeat that any suggestion, which you may make to Sir, 
Edward Grey, must be done in an entirely personal way and with 
the distinct understanding that this Government is in no way 
lesponsible for what you may say. (Ibid, p. 249.) 

In his telegram from London of October 15, 1914, re- 
lating to differences in regard to the Declaration of Lon- 
don and shipping questions, the American Ambassador, 
Mr. Page, had said : 

The question seems wholly different here from what it prob- 
ably seems in Washington. There it is a more or less academic 
discussion. Here it is a matter of life and death for English- 
speaking civilization. It is not a happy time to raise contro- 
versies that can be avoided or postponed. Nothing can be 
gained and every chance for useful cooperation for peace can 
easily be thrown away and is now in jeopardy. In jeopardy also 
are our friendly relations with Great Britain in the sorest time 
of need in her history. I know that this is the correct, larger 
view. (Ibid, p. 248.) 

The United States as a neutral state had proposed 
the maintenance of neutral rights and the President him 
self replied on October 16. 



& j 



Beg that you will not regard the position of this Government 
as merely academic. Contact with opinion on this side the 
water would materially alter your view. Lansing has pointed 
out to you in personal confidential despatch of this date how 
completely all the British Government seeks can be accomplished 
without the least friction with this Government and without 
touching opinion on this side the water on an exceedingly tender 
spot. I must urge you to realize this aspect of the matter and 
tc use your utmost persuasive efforts to effect an understanding, 
which we earnestly desire, by the method we have gone out of 
our way to suggest, which will put the whole case in unimpeach- 
able form. 

This is private and for your guidance. 

Woodrow Wilson. 
(Ibid, p. 252.) 

Disappearance of contraband distinctions. — In a proc- 
lamation revising the British contraband list, October 



DISAPPEARANCE OF DISTINCTIONS 17 

29, 1914, there were two schedules, one to be treated as 
absolute contraband and the other as conditional con- 
traband. 

Vigorous protests had arisen against the German War 
Zone proclamation of February 4, 1915, which declared 
the waters surrounding Great Britain and Ireland 

to be comprised within the seat of war and that all enemy mer- 
chant vessels found in those waters after the eighteenth instant 
will be destroyed although it may not always be possible to save 
crews and passengers. 

Neutral vessels expose themselves to danger within this zone 
of war since in view of the misuse of the neutral flag ordered 
by the British Government on January thirty-first and of the 
contingencies of maritime warfare it cannot always be avoided 
that neutral vessels suffer from attacks intended to strike enemy 
ships. (1915 U.S. Foreign Relations, Supplement, p. 94.) 

The attitude of Great Britain in regard to American 
communications on contraband and maritime warfare in 
general as viewed by the American Ambassador in Great 
Britain may be seen in the following telegram of May 
21, 1915, to the Secretary of State : 

Unofficial critics praise the courtesy and admit the propriety 
of our communications, but they regard them as remote and 
impracticable. They point out that we have not carried our 
points : namely, that copper should not be contraband, that ships 
should be searched at sea, that to-order cargoes should be valid, 
that our export trade had fallen off because of the war. They 
point out these in good-natured criticism as evidence of the 
American love of protest for political effect at home. While the 
official reception of our communications is dignified, the un- 
official and general attitude to them is a smile at our love of 
letter writing as at Fourth of July orations. They quietly laugh 
at our effort to regulate sea warfare under new conditions by 
what they regard as lawyers' disquisitions out of textbooks. They 
[receive] them with courtesy, pay no further attention to them, 
proceed to settle our shipping disputes with an effort at gen- 
erosity and quadruple their orders from' us of war materials." 
They care nothing for our definitions or general protests but are 
willing to do us every practical favor and will under no condi- 
tions either take our advice or offend us. They regard our 
writings as addressed either to complaining shippers or to poli- 
ticians at home. 



18 CONTRABAND AND BLOCKADE 

For these reasons complaints about concrete cases as they 
arise are more effective than general communications about rules 
of sea warfare, which must be revised by the submarine, the 
aeroplane, the mine and our own precedents. (Ibid, p. 147.) 

Further restrictions were put by the Allied Powers 
upon goods coming from or bound to Germany, and the 
American Secretary of State on March 30 said that the 
action constituted: 

a practical assertion of unlimited belligerent rights over neutral 
commerce within the whole European area, and an almost un- 
qualified denial of the sovereign rights of the nations now at 
peace. 

This Government takes it for granted that there can be no 
question what those rights are. A nation's sovereignty over its 
own ships and citizens under its own flag on the high seas in 
time of peace is, of course, unlimited ; and that sovereignty suf- 
fers no diminution in time of war, except in so far as the prac- 
tice and consent of civilized nations has limited it by the recog- 
nition of certain now clearly determined rights, which it is con- 
ceded may be exercised by nations which are at war. (Ibid., 
p. 152.) 

In a long note of February 12, 1915, from the British 
Foreign Secretary to the American Ambassador, it was 
said: 

The most difficult questions in connection with conditional con- 
traband arise with reference to the shipment of foodstuffs. No 
country has maintained more stoutly than Great Britain in mod- 
ern times the principle that a belligerent should abstain from 
interference with the foodstuffs intended for the civil population. 
The circumstances of the present struggle are causing His Ma- 
jesty's Government some anxiety as to whether the existing rules 
with regard to conditional contraband, framed as they were with 
the object of protecting so far as possible the supplies which 
were intended for the civil population are effective for the pur- 
pose, or suitable to the conditions present. The principle which 
I have indicated above is one which His Majesty's Government 
have constantly had to uphold against the opposition of conti- 
nental powers. In the absence of some certainty that the rule 
would be respected by both parties to this conflict, we feel great 
doubt whether it should be regarded as an established principle 
of international law. * * * 



CONDITIONAL CONTEABAND PROBLEMS 19 

The reason for drawing a distinction between foodstuffs in- 
tended for the civil population and those for the armed forces 
or enemy Government disappears when the distinction between 
the civil population and the armed forces itself disappears. 

In any country in which there exists such tremendous organ- 
ization for war as now obtains in Germany there is no clear 
diversion [division] between those whom the Government is re- 
sponsible for feeding and those whom it is not. Experience shows 
that the power to requisition will be used to the fullest extent 
in order to make sure that the wants of the military are sup- 
plied, and however much goods may be imported for civil use it 
is by the military that they will be consumed if military exigen- 
cies require it, especially now that the German Government have 
taken control of all the foodstuffs in the country. (Ibid., p. 
532.) 

The Department of State of the United States on Oc- 
tober 28, 1915, made certain inquiries in regard to the 
control of German resources and imports by the Govern- 
ment itself. 

In Department's consideration of destination of conditional con- 
traband, it is necessary to ascertain to what extent the military 
authorities have superseded civil authorities in the Government 
of Germany so far as control over imports are concerned, and to 
what extent the Government controls the use of articles on con- 
traband list of Great Britain and her allies. Are private con- 
signees free to import such articles without interference by 
authorities? (Ibid., p. 603.) 

In reply to the above query, the following was received 
from Berlin on December 4, 1915 : 

Following information communicated verbally by Foreign Office ; 
written answer promised : 

(1) Owing to proclamation issued at outbreak of war, military 
authorities theoretically have power to supersede civil authorities, 
but, practically, power has been exercised in only few instances 
and not at all in connection with customs authorities. 

(2) In so far as control of use of imported goods is concerned, 
Government regards enemy's list of conditional contraband as of 
no importance. 

(3) Receipt and distribution of certain imported food and 
fodder products may take place only through central organiza- 
tion which distributes to civil parties only, but military authori- 
ties have power to requisition against payment anything needed 
by army or navy. 



20 CONTRABAND AND BLOCKADE 

Chancellor has power to grant exemption from control and dis- 
tribution and military authorities have power to guarantee in 
advance freedom from requisition of designated imported con- 
signments in whole or part. <Ibid, p. 622.) 

The protests of neutrals were answered after varying 
periods of delay but at length the Secretary of State of 
the United States after much correspondence said in a 
communication to the Ambassador in Great Britain, 
November 11, 1916, 

Sir: With reference to the announcement made by the British 
Foreign Office, under date of April 13, 1916, of the intention of 
the British Government to treat alike absolute and conditional 
contraband, you are instructed to communicate to the Foreign 
Office a formal reservation, in regard to this announcement, in 
the sense that, in view of the established practice of a number 
of maritime nations, including Great Britain and the United 
States, of distinguishing between absolute and conditional con- 
traband, the Government of the United States is impelled to 
notify the British Government of the reservation of all rights of 
the United States or its citizens in respect of any American in- 
terests which may be adversely affected by the abolition of the 
distinction between these two classes of contraband, or by the 
illegal extension of the contraband lists during the present war 
by Great Britain and her allies. (1916 U.S. Foreign Relations, 
Supplement, p. 483.) 

The " Kim " and three other ships, 1915. — In October 
and November 1914 the Kim, the Alfred Nobel, the 
Bjornsterjfie Bjornson, and the Fridland, all Nor- 
wegian ships except the Fridland, which was Swedish, 
sailed from New York for Copenhagen. In their car- 
goes were foodstuffs, rubber, and hides. The treatment 
of the cargoes and of the ships were made separate cases, 
and the reprisals order of March 11, 1915, was not made 
applicable. 

In these cases inference as to ultimate destination to 
Germany of goods consigned to Copenhagen was based 
in the first instance upon the rapid increase in the rela- 
tive amount of such goods shipped to Copenhagen in 
corresponding months of 1913 and 1914. There was also 



DESTINATION 21 

an argument on the ground of evident deception and 
misinformation. The opinion states that 

Two important doctrines familiar to international law come 
prominently forward for consideration ; the one is embodied in 
the rule as to " continuous voyage," or continuous " transporta- 
tion ;" the other relates to the ultimate Hostile destination of 
conditional and absolute contraband, respectively. ( [1915] P. 
215 ; reprinted, 1922 Naval War College International Law Docu- 
ments, p. 50.) 

The lists of contraband both absolute and conditional 
have varied from time to time and according to circum- 
stances. The belligerent has usually stood for an ex- 
tended list while the neutral has desired a restricted list. 
Destination has always been a deciding factor in deter- 
mining contraband. This has been particularly impor- 
tant in the application of the doctrine of continuous 
voyage. It has been maintained that the ultimate des- 
tination is to the country in which the goods are actually 
to become " a part of the common stock." 

Many of the questions relating to ultimate destination 
were raised in the American Civil War. The party to 
whom the goods may be consigned does not always prove 
the ultimate destination. Goods often in time of peace are 
" to order or assigns." Even the British Government in 
the American Civil War did not deny that such consign- 
ments on British vessels might not be open to suspicion 
" which might be dispelled by the shippers." Somewhat 
similar questions might arise in shipments of goods to 
branches or agents or when no consignee is named. 

In the case of the Kim, however, it was stated that : 

It is, no doubt, incumbent upon the captors in the first instance 
to prove facts from which a reasonable inference of hostile desti- 
nation can be drawn, subject to rebuttal by the claimants. (Ibid.) 

Destination. — If a distinction is made between absolute 
and conditional contraband, the distinction between en- 
emy country and enemy forces becomes important. If 
an unfortified area becomes fortified, its status changes 
as a place to which goods may without liability be 



22 CONTRABAND AND BLOCKADE 

shipped. If the population of an area which has been 
subject only to the civil law is mobilized and put under 
military control the status of the population changes as 
a population to which goods may without liability be 
shipped. If the business of a consignee of a cargo 
should suddenly change, as from a lawyer with no trade 
relations and on a small salary to a merchant ship owner 
to whom large and valuable cargoes were consigned, the 
burden of proof of the genuineness of the consignment 
might be upon him. (The Hillerod, 1918, App. Cas. 
412.) 

Direct interference with neutral trade. — The accepted 
laws of war give to belligerents the right to interfere 
with neutral trade in two respects, contraband and block- 
ade. Extension of these rights may involve continuous 
voyage or ultimate destination and there are certain 
analogies to unneutral service. During the World War 
as difficulties in maintaining blockades in north Europe 
increased, more reliance was placed upon the liberal or 
extreme interpretation of the laws in regard to contra- 
band without, in the early stages of the war, resort to 
what were later called reprisals. There were also many 
changes in trade relations due to introduction of new 
means of transportation and communication between 
merchants in different states which made the application 
of some of the decisions of the nineteenth century doubt- 
ful. The tonnage of modern merchant vessels may make 
the problem of search much more difficult than in the 
early nineteenth century when the captured vessels were 
ordinarily under 250 tons. How far a merchant vessel 
of a neutral of 25,000 or 50,000 tons with its passengers 
may be delayed or diverted for visit or search or what 
may justify such delay or diversion are still debatable 
questions. The changes in the nature of materials used 
in war have made it more difficult to list articles which 
may be liable to capture. Chemical processes have in 
recent years greatly enlarged the list of materials useful 
for or essential in war. Other processes and uses may 



EXEMPT ARTICLES 23 

render some materials obsolete and introduce new cate- 
gories. 

Exempt articles. — While hospital supplies usually re- 
ceived a measure of consideration in transit from neutral 
to belligerent countries, other articles were from time to 
time allowed to be exported. Some neutral states, owing 
to weakness, protested and submitted to restrictions gen- 
erally admitted to be beyond the limits of legality. Some 
neutral states, for reasons less evident, submitted to un- 
justifiable interference with commerce. 

Articles other than hospital supplies which supposedly 
could be of no service in war were sometimes mentioned 
as in the communication of the Consul General at London 
to the Secretary of State, December 23, 1916 : 

Proclamation issued to-day requires that all articles exported to 
Holland be consigned to Dutch Government, diplomatic or con- 
sular officers, with permission of Ministry of Foreign Affairs, or 
Netherlands Oversea Trust, except printed matter, returned con- 
tainers, worn clothing and personal effects, live animals not used 
for food, sanitary earthenware, pottery and common earthenware, 
books, dolls, toys, wooden clock cases, slate and slate pencils, 
postage stamp and postcard albums. Proclamation apparently 
intended to permit free shipment of articles here mentioned. 

Skinner. 
(1916 U.S. Foreign Relations Supplement, p. 490.) 

Hospital supplies. — The American Ambassador in 
Spain sent on September 22, 1914, to the Secretary of 
State the f ollowing telegram : 

In an interview yesterday morning His Majesty informed me 
confidentially condition of wounded soldiers, particularly in French 
hospitals where there are inadequate supplies, especially of band- 
ages and absorbent cotton, was deplorable and expressed an 
earnest wish for our cooperation in relieving this situation. To 
that end he hopes that the United States and Spanish Ambassa- 
dors accredited near various European courts now at war will 
, make a joint request for arrangements between countries of hos- 
pital supplies and the such supplies in transit on the high seas may 
be considered by them neither contraband nor conditional contra- 
band of war but free. Please telegraph whether Department can 
see its way clear to give to our diplomatic officers concerned the 



24 CONTRABAND AND BLOCKADE 

instructions necessary to realize His Majesty's hope. (1914 U.S. 
Foreign Relations, Supplement, p. 831.) 

The American Government immediately communicated 
this request to diplomatic representatives of the United 
States in the belligerent countries. It was naturally sug- 
gested that the detailed list of articles should be de- 
termined, but agreement in principle was general. The 
Russian reply favored a broad interpretation. The Ger- 
man reply follows: 

Your circular September 24. The Foreign Office replies to joint 
request that No. 28, paragraph 1, of the German prize ordinance of 
September 30, 1909, already provides that articles serving ex- 
clusively to aid the sick and wounded shall not be treated as 
contraband and may be requisitioned subject to payment compen- 
sation only in case of urgent military necessity and when their 
destination is to the territory of the enemy or to territory oc- 
cupied by the enemy or to the armed forces of the enemy. (Ibid, 
p. 835.) 

The French Government said : 

While appreciating the humanitarian attitude of the United 
States Government, the French Government does not think the 
moment propitious for agreement between belligerents, even on 
a subject which by its character should be placed beyond reach 
of conflict. Experience of contempt which certain belligerents 
show for international conventions to which they have agreed 
gives grounds for apprehension that they would not observe a 
new agreement nor execute its provisions as soon as it was to 
their advantage not to do so. The French Government recalls 
that definition of objects mentioned in Article 29 of the Dec- 
laration of London was summarily made in the general report at 
the London conference by the drafting committee, and it was 
thus agreed that the immunity established under Article 29 ap- 
plied to drugs and various medicines. The French Government 
adds that while it might be a delicate matter to be more pre- 
cise and extend obligations of belligerents during war beyond 
where they were fixed in time of peace, nevertheless it would not 
refuse to study the suggestions of the American Government to 
draw up a list of drugs and medicines whose character as " arti- • 
cles serving exclusively to aid the sick and wounded " shall be 
closely defined. (Ibid, p. 836.) 



CONTEABAND DISTINCTIONS 25 

Later much discussion was carried on and Great Britain 
withdrew the list of articles to which the British Gov- 
ernment had given exemption. 

The attitude of the British Government was consid- 
ered- in a letter of ex-President Taft, then chairman 
of the central committee of the American Ked Cross 
to the Secretary of State on May 8, 1916. In this letter 
Mr. Taft said, 

Since the beginning of the present war, the American Red 
Cross has invited contributions of money and supplies with 
which to aid the wounded and suffering of all the belligerents. 
We have shipped to the Red Cross societies of each belligerent 
hospital supplies contributed to us for that purpose. We have 
found no difficulty in sending such article to the Entente Allies. 
We have had to obtain permits from Great Britain for the 
shipments to the Red Cross of the Central powers. Until Sep- 
tember 1915, there was substantially no delay in the granting 
of these permits by Great Britain. Since that time, we have 
had much difficulty in securing them, and the supplies donated 
in kind and designated for the use of the Central powers have 
accumulated in our warehouses in New York. A permit was 
granted for only one shipment since that time — in January of 
this year. Through your Department, we are now in receipt 
of a communication from the British Government, announcing 
that it does not intend to permit any further shipments, unless 
it is a shipment to our own hospital units, in a territory of the 
Central powers. This exception amounts to no concession, for* 
the reason that as the British Government was advised in August 
last, after the first of October, for lack of funds, we were able 
to maintain no hospital units in any of the belligerent countries. 
The authorities of the American Red Cross believe that under 
the Geneva convention, to which the United States and all the 
belligerent powers are signatories, the United States has the 
treaty right to insist that articles serving exclusively to aid the 
sick and wounded in the form of hospital supplies, shipped by 
the American Red Cross to the Red Cross of the Central powers, 
shall not be declared contraband, but shall be allowed safe- 
conduct to their destination. (1916 U.S. Foreign Relations, Sup- 
plement, p. 948.) 

Contraband distinctions. — As was shown in the World 
War, it is difficult and at times impossible to distinguish 
between absolute and conditional contraband. By na- 



26 CONTRABAND AND BLOCKADE 

ture, some goods may equally serve the combatant and 
noncombatant population. If a consignment of goods is 
unquestionably for the civil population in a given area, 
these goods may in fact make it possible to send to the 
forces other goods which would have been essential in 
that area without the consignment and it has been held 
that it thus makes little difference which goods go to 
the forces as the result is the same. The means of trans- 
portation and methods of warfare have so far changed 
that nearly all parts of a state may serve its forces and 
nearly all goods may be of use for the forces. Indeed 
in the World War German courts seemed to regard all 
ports of England as ports which could be considered 
bases and the British seemed to regard practically all 
goods as of military use. 

The distinctions between absolute and conditional con- 
traband came to have little significance and to be little 
applied in practice. During the World War most states 
participating in the conflict formally abolished or tacitly 
disregarded the distinction. 

Situation I (a) involves two matters: (1) the aboli- 
tion of the distinction between conditional and absolute 
contraband; (2) the treatment of all goods bound for an 
enemy country as contraband. 

Contraband consists of articles which a neutral may 
not furnish to one belligerent without risk of capture 
by the other belligerent. The essential items for con- 
sideration would be the nature of the article and the 
destination. 

Goods of the nature of contraband of which capture 
might be justified would be such as would aid the bellig- 
erent in the conduct of the war. In early days when the 
conduct of the war depended almost wholly upon sup- 
plying the enrolled armed forces with the simple imple- 
ments of war, lists were comparatively easy to draw up 
and did not vary greatly from year to year. Pitch-balls 
and javelins might be included in a contraband list, as 
in the treaties with Sweden, 1783, and some other early 



CONDITIONAL CONTRABAND PROBLEMS 27 

treaties of the United States, but cotton and oil and 
many other articles were definitely excluded from the 
list, and it was provided they " shall not by any pre- 
tended interpretation be comprehended among pro- 
hibited or contraband goods " unless bound to places 
" besieged, blocked, or invested " so as to be " nearly sur- 
rounded by one of the belligerent powers." 

The intention of such agreements was to confine the 
list of contraband to such articles as were actually for 
war use. Manifestly therefore for all contraband arti- 
cles the destination was a matter of equal importance 
with the nature of the article itself, for if the article 
whatever its nature,, was not destined for war use it 
would not be liable as contraband. Speaking of articles 
of ordinary use such as provisions, Mr. Justice Story in 
the case of the Commercen, 1816, said, " if destined for 
the army or navy of the enemy, or for his ports of naval 
or military equipment, they are deemed contraband." 
(1 Wheat. 387.) 

The attitude of leading states has varied in regard to 
what articles and when articles might be treated as 
conditional contraband. Even during the World War 
there were many conflicting opinions. 

If a state mobilizes its whole population and all its re- 
sources for war, evidently it will be difficult if not impos- 
sible to distinguish among consignments destined for that 
state, and anything bound for the state, unless exempted 
on humanitarian grounds, may be liable to capture as 
contraband. The grounds of humanity would exempt 
articles whose sole use would be for medicinal and surgi- 
cal purposes and articles necessary for Red Cross opera- 
tions. 

The changing use and impossibility of determining 
what may be of use in war from day to day and the pos- 
sibility of mobilization of population would therefore 
justify the declaration that the distinction between abso- 
lute and conditional contraband is abolished. 

73500—34 3 



28 CONTRABAND AND BLOCKADE 

All goods other than those solely for humanitarian and 
Red Cross use might be declared contraband. 

Early blockades. 2 — Some of the recent contentions in 
regard to blockades are similar to those made as early as 
the seventeenth century. The idea of a place besieged on 
land was coming to be applied to a port and for a time 
it was held that it should be closed by the enemy on all 
sides, landward as well as seaward. In the seventeenth 
century, however, some of the pronouncements speak of 
the ancient practice of forbidding transport of goods to 
certain areas under penalty and there seem to have been 
such proclamations as early as the thirteenth century. 
Of course, there was great variety of practice in these 
early days. The Dutch notification of June 26, 1630, de- 
clared in accord with ancient usage that vessels bound for 
enemy ports of Flanders, sailing from or entering, would 
with their cargoes be liable to confiscation. There were 
even in early days controversies in regard to what de- 
gree of force was essential to render such proclamations 
effective from a legal standpoint. Treaties of the seven- 
teenth and eighteenth centuries refer to ports " besieged, 
blocked, or invested " and some prescribe how many ships 
shall be before a port in order that the blockade may be 
legal or how strong a battery must be on shore. The need 
of specification of limits to which the blockade would ex- 
tend came later. Under article XIII of the treaty be- 
tween the United States and Sweden and Norway, 1816, 
merchant vessels of either, when one was at war and the 
other was neutral, were entitled to notification of block- 
ade at the line unless it could be proved that the neutral 
vessel knew or should have known of the blockade. 

Declaration of Paris, 1856. — The Declaration of Paris 
of 1856 was accepted as stating the approved attitude 
upon blockade in the middle of the nineteenth centurj 7 . 
This declaration upon blockade was " blockade in order 



2 For treatment of special aspects of blockade, see Naval War College- 
publications, 1901-32. 



DECLAKATIONS OF PARIS AND LONDON 29 

to be binding must be effective — that is to say maintained 
by a force sufficient really to prevent access to the coast 
of the enemy." This declaration has been repeatedly 
reaffirmed even during the World War. Manifestly the 
actual words may not be taken too literally for if they 
were strictly construed, blockade would cease to be bind- 
ing when a single inward breech should occur, though 
egress from the coast would not be considered in the 
interpretation. What it was really aimed to prevent 
was resort to paper blockades by requiring a reasonably 
adequate blockading force before the coast which was 
declared blockaded. 

As was said in the Supreme Court of the United States 
in 1899 in the case of the Olinde Rodrigues : 

But it can not be that a vessel actually captured in attempting 
to enter a blockaded port, after warning entered on her log by a 
cruiser off that port only a few days before, could dispute the 
efficiency of the force to which she was subjected. 

As we hold that an effective blockade is a blockade so effective 
as to make it dangerous in fact for vessels to attempt to enter 
the blockaded port, it follows that the question of effectiveness is 
not controlled by the number of the blockading force. In other 
words, the position can not be maintained that one modern 
cruiser though sufficient in fact is not sufficient as matter of law. 
(174 U.S. 510.) 

Declaration of London and blockade. — The provisions 
of the unratified Declaration of London, 1909, were 
agreed upon by representatives of the naval powers after 
full discussion. Article 1 of the Declaration of London 
stated, 

A blockade must be limited to the ports and coasts belonging 
to or occupied by the enemy. 

The purpose of this article was, viewing blockade as 
a war measure, to direct its consequences only against 
the enemy. The Declaration of London regarded the 
statement in the Declaration of Paris as the first neces- 
sary condition and as a matter upon which "for a long 
time there has been universal agreement." Detailed 



30 CONTEABAND AND BLOCKADE 

rules were prescribed for the establishing and raising 
of blockade. 

Article 18 of the Declaration of London states that, 

The blockading forces must not bar access to the ports or to 
the coasts of neutrals. 

In the general report presented to the naval conference 
on behalf of the drafting committee, it was said of 
article 18, 

This rule has been thought necessary for the better safe- 
guarding of the commercial interests of neutral countries ; it 
completes Article 1, according to which a blockade must be lim- 
ited to the ports and coasts of the enemy, which implies that, 
since it is an operation of war, it should not be directed against 
a neutral port, in spite of the interest that a belligerent may 
have in it because of the part played by that neutral port in 
supplying his adversary. (1909 Naval War College, Interna- 
tional Law Topics, p. 53.) 

During the wars between 1909 and 1914 the provisions 
of the Declaration of London in regard to blockade were 
followed. 

During the early days of the World War there were 
some slight changes in the provisions, in regard to pre- 
sumption of knowledge of blockade. In the areas out- 
side of Western Europe the blockade was declared with 
the understood respect for ordinary rules. 

American mews. — Early in the World War contro- 
versies arose in regard to the use of ships in the neigh- 
borhood of the North Sea. Great Britain and Germany 
particularly argued with neutrals in regard to violation 
of neutral rights. The Government of the United States 
proposed adherence to the Declaration of London, but 
this was not adopted. The Government of the United 
States also protested against the extension of interfer- 
ence with American trade and British Orders in Council 
were mentioned in communications from the Department 
of State as early as September 29, 1914, as menacing 
" the commercial rights of the United States as a neutral, 
in violation of the generally accepted rules of interna- 



WORLD WAR DISCUSSIONS 31 

tional law." (1914 U.S. Foreign Relations, Supplement 
234.) Later in referring to British and French declara- 
tions as to retaliation upon neutral commerce with Ger- 
many, the Secretary of State of the United States said 
on March 5, 1915, 

While it appears that the intention is to interfere with and take 
into custody all ships both outgoing and incoming trading with 
Germany, which is in effect a blockade of German ports, the rule 
of blockade, that a ship attempting to enter or leave a German 
port regardless of character of its cargo may be condemned, is 
not asserted. 

The language of the declaration is : " the British and French 
Governments will, therefore, hold themselves free to detain and 
take into port ships carrying goods of presumed enemy destina- 
tion, ownership, or origin. It is not intended to confiscate such 
vessels or cargoes unless they would otherwise be liable to con- 
demnation." 

The first sentence claims a right pertaining only to a state of 
blockade. The last sentence proposes a treatment of ships and 
cargoes as if no blockade existed. The two together present a 
proposed course of action previously unknown to international 
law. 

As a consequence neutrals have no standard by which to 
measure their rights or to avoid danger to their ships and car- 
goes. The paradoxical situation thus created should be changed 
and the declaring powers ought to assert whether they rely 
upon the rules governing a blockade or the rules applicable when 
no blockade exists. (Ibid., 1915, Supplement, 132.) 

World War discussions. — On August 20, 1914, a 
British Order in Council announced that the British, 
French, and Russian naval forces would, as affects neu- 
tral ships and commerce, conduct the war on similar prin- 
ciples. So far as practicable they would act in accord- 
ance with the provisions of the Declaration of London. 
In addition to exchanges in the provisions in regard to 
contraband, these states made some modifications as to 
destination of cargo and presumption of knowledge of 
blockade. The Government of the United States had 
made an effort to have the Declaration of London ac- 
cepted without amendment and the Central Powers had 
expressed a favorable attitude toward this action. 



32 CONTEABAND AND BLOCKADE 

In a note of September 26, 1914, the United States 
said of the Declaration of London : 

As might be expected in a settlement of divergent views and 
practices by mutual concession the Declaration of London con- 
tains provisions both advantageous and disadvantageous to the 
respective interests of neutrals and belligerents. But it is now 
proposed by Great Britain to retain all the provisions favorable 
to belligerents and to recast other provisions so that they will be 
less favorable to neutral interests. The result is a set of rules 
which limits neutrals' rights far more than does the declaration 
itself treated as a whole. War, in any event, bears heavily upon 
a neutral nation. The interruption of its commerce and the limi- 
tations placed upon its trade are sufficiently burdensome under 
the rules of the Declaration of London. In consenting to those 
rules the Government of the United States made great concessions 
on its part and it does not feel that it can, in justice to its own 
people, go further. It cannot consent to the retention of a part 
of this compromise settlement and to the rejection of another part. 
The adoption of the declaration so modified is contrary to the 
customary procedure incident to compromise settlements, to the 
express provisions of the declaration itself, and to the spirit 
which induced its signature. (1914 U.S. Foreign Relations, 
Supplement, p. 228.) 

The British additions and modifications greatly en- 
larged the Declaration of London presumption as to 
destination and would, according to the American note, 
give to Great Britain " the advantages of an established 
blockade without the necessity of maintaining it with an 
adequate naval force. The effect of this asserted right 
suggests the result which was sought by the so-called 
' paper blockades ' which have been discredited for a 
century, and were repudiated by the Declaration of 
Paris." (Ibid, p. 229.) 

In this strong note of September 26, 1914, the United 
States further says, 

Finally this Government considers that the Declaration of Lon- 
don, as changed by the order in council, would result in such an 
interference with the customary rights of neutral commerce that 
the United States could not assent to it or submit to its enforce- 
ment, for the reason that to recognize it as a measure of the 
neutral rights of the United States would, in the opinion of this 



WOULD WAK DISCUSSIONS 33 

Government, be a manifest failure on its part to safeguard the 
interests of American citizens engaged in legitimate traffic with 
the subjects of belligerent and neutral nations. 

In view of these considerations this Government is obliged to 
inform the Government of His Britannic Majesty that the United 
States would be unable to accept the declaration as thus modified 
though all the belligerents should concur in the modifications sug- 
gested by Great Britain. The Government of the United States, 
therefore, reserves all the rights which it has under the law of 
nations in relation to any losses or damages which may occur 
by reason of captures or condemnations made by the Govern- 
ment of Great Britain under the provisions of the Declaration of 
London as modified by the order in council of August 20, 1914. 
(Ibid., p. 231.) 

In the British note of August 22, 1914, referring to 
the Order in Council of August 20, there had been the 
statement, 

The peculiar conditions in the present war due to the fact that 
neutral ports such as Rotterdam are the chief means of access 
to a large part of Germany and that exceptional measures have 
been taken in the enemy country for the control by the Govern- 
ment of the entire supply of foodstuffs have convinced His 
Majesty's Government that modifications are required in the 
applications of Articles 34 and 35 of the declaration. These modi- 
fications are contained in paragraphs 3 and 5 of the accompany- 
ing order-in-council. (Ibid., p. 219.) 

Paragraphs 3 and 5 here mentioned are as follows : 

(3) The destination referred to in Article 33 [use of the armed 
forces or of a government department] may be inferred from any 
sufficient evidence, and (in addition to [the] presumption laid 
down in Article 34) shall be presumed to exist if the goods are 
consigned to or for an agent of the enemy state or to or for a 
merchant or other person under the control of the authorities of 
the enemy state. * * * 

(5) Notwithstanding the provisions of Article 35 [ship's papers 
conclusive proof of voyage and port of discharge except when off 
course] of the said declaration, conditional contraband, if shown 
to have the destination referred to in Article 33, is liable to cap- 
ture, to whatever port the vessel is bound and at whatever port 
the cargo is to be discharged. (Ibid., p. 220.) 

The Acting Secretary of State Lansing also said in the 
note of September 26, 1914, in regard to interference with 



34 CONTRABAND AND BLOCKADE 

commerce to a neutral port, such as Rotterdam, men- 
tioned in the British memorandum, 

Furthermore, if the modifications were acceptable to this Gov- 
ernment, it would be unwilling, by accepting them, to prejudice 
the rights of the Netherlands, the other signatory of the declara- 
tion neutral in the present war, whose interests, as the memo- 
randum of the Foreign Office discloses, will be vitally affected by 
the changes proposed. (Ibid., p. 231.) 

The same matter received further consideration in an 
interview between the American Ambassador and the 
British Foreign Secretary. 

The British purpose he went on to say was to prevent the enemy 
from receiving food and materials for military use and nothing 
more. I explained that the people of the United States had a 
trade with Holland apart from supplies and materials meant 
for Germany and that our Government could not be expected to 
see that sacrificed or interfered with. (Ibid., p. 233.) 

Further correspondence expressed the American desire 
that there should be the minimum interference with neu- 
tral commerce and that the accepted principles of inter- 
national law should be observed. The British Govern- 
ment replied to the effect that, 

We [the British Government] had only two objects in our 
proclamations : To restrict supplies for German army and to re- 
strict supply to Germany of materials essential for making of 
munitions of war. We wished to attain these objects with the 
minimum of interference with the United States and other neu- 
tral commerce. (Ibid., p. 237.) 

After much more correspondence and proposals and 
counterproposals in regard to the Declaration of Lon- 
don, the Acting Secretary of State withdrew the sugges- 
tion that the Declaration of London be a temporary code 
of naval warfare and said, 

this Government will insist that the rights and duties of the 
United States and its citizens in the present war be defined by 
the existing rules of international law and the treaties of the 
United States irrespective of the provisions of the Declaration 
of London ; and that this Government reserves to itself the right 
to enter a protest or demand in each case in which those rights 



BKITISH OEDERS IN COUNCIL 35 

and duties so defined are violated or their free exercise inter- 
fered with by the authorities of His Britannic Majesty's Govern- 
ment. (Ibid, p. 258.) 

The British Order in Council of March 11, 1915, clear- 
ly stated to be in reprisal against the German declaration 
of the war zone about the United Kingdom, was con- 
sidered by some as in effect a blockade, but its provisions 
were quite unlike those establishing a blockade and in- 
volved consequences far in excess of blockade liabili- 
ties. The Order in Council of February 16, 1917, sup- 
plemental to earlier orders gives an idea of the extent 
to which under reprisal measures neutrals were expected 
to tolerate interference with their commerce : 

1. A vessel which is encountered at sea on her way to or from 
a port in any neutral country affording means of access to the 
enemy territory without calling at a port in British or Allied ter- 
ritory shall, until the contrary is established, be deemed to be 
carrying goods with an enemy destination, or of enemy origin, 
and shall be brought in for examination and, if necessary, for 
adjudication before the Prize Court. 

2. Any vessel carrying goods with an enemy destination, or of 
enemy origin, shall be liable to capture and condemnation in re- 
spect of the carriage of such goods ; provided that, in the case 
of any vessel which calls at an appointed British or Allied 
port for the examination of her cargo, no sentence of condemna- 
tion shall be pronounced in respect only of the carriage of goods 
of enemy origin or destination, and no such presumption as is 
laid down in Article I shall arise. 

3. Goods which are found on the examination of any vessel 
to be goods of enemy origin or of enemy destination shall be 
liable to condemnation. 

4. Nothing in this Order shall be deemed to affect the liability 
of any vessel or goods to capture or condemnation independently 
of this Order. (Statutory Rules and Orders, 1917, p. 953.) 

As is evident neutrals were also liable under accepted 
principles of international law. 

None of the Orders in Council specifically used the 
word blockade though the aim was to prevent communi- 
cation with the enemy. 

In the British memorandum of February 20, 1915, it 
was said in justification of their action, 



36 CONTRABAND AND BLOCKADE 

The Government of Great Britain have frankly declared, in 
concert with the Government of France, their intention to meet 
the German attempt to stop all supplies of every kind from 
leaving or entering British or French ports by themselves stop- 
ping supplies going to or from Germany for this end. The 
British fleet has instituted a blockade, effectively controlling 
by cruiser " cordon " all passage to and from Germany by sea. 
The difference between the two policies is, however, that while 
our object is the same as that of Germany, we propose to attain 
it without sacrificing neutral ships or non-combatant lives or 
inflicting upon neutrals the damage that must be entailed when 
a vessel and its cargo are sunk without notice, examination, or 
trial. I must emphasize again that this measure is a natural 
and necessary consequence of the unprecedented methods, repug- 
nant to all law and morality, which have been described above, 
which Germany began to adopt at the very outset of the war, 
and the effects of which have been constantly accumulating. 
(1915 U.S. Foreign Relations, Supplement, p. 142.) 

This act departed from the accepted principles of in- 
ternational law in regard to blockades and later cor- 
respondence does not attempt to justify the Orders in 
Council on such grounds. 

Proclaimed blockades in World War. — Blockades were 
regularly proclaimed in numerous instances during the 
early years of the World War. 

Austria-Hungary proclaimed in 1914 " that from Au- 
gust 10, at noon, the coast of Montenegro will be held in a 
state of effective blockade by the Austro-Hungarian na- 
val forces." (1917 Naval War College, International 
Law Documents, p. 53.) 

The Japanese blockade of leased territory of Kiao- 
Chau was somewhat more detailed as to hours of grace 
for departure of vessels, etc. 

The successive notifications in regard to the coast of 
the Cameroons show the regularity of certain British 
procedure. 

Foreign Office, April 2J/, 1915. 
His Majesty's Government have decided to declare a blockade 
of the coast of the Cameroons as from midnight April 23-24. 
The blockade will extend from the entrance of the Akwayafe 



PKOCLAIMED BLOCKADES 37 

River to Bimbia Creek, and from the Benge mouth of the Sanaga 
River to Campo. 

Forty-eight hours' grace from the time of the commencement 
of the blockade will be given for the departure of neutral ves- 
sels from the blockaded area. 

With reference to the notification, dated April 24, 1915, which 
appeared in the London Gazette of April 27 last, His Majesty's 
Government give notice that the blockade of the coast of Camer- 
oons has been raised so far as concerns the coast line from the 
Akwayafe River to Bimbia Creek. The blockade still remains in 
force from the Benge mouth of the Sanaga River to Campo. 

Foreign Office, January 8, 1916. 

With reference to the notification dated January 11, 1916, which 
appeared in the London Gazette of that date, His Majesty's Gov- 
ernment give notice that the blockade of the coast of the Camer- 
oons, which had been maintained in force from the Benge mouth 
of the Sanaga River to Campo, is completely raised as from mid- 
night (Greenwich time), February 29-March 1. (Ibid., p. 135.) 

The French notification of the blockade of Greece 
gives a detailed statement. 

The Government of the French Republic, having agreed with its 
allies to declare a blockade of Greece, hereby gives notice of the 
conditions by which they will proceed. 

The blockade is declared effective from December 8, 1916, at 8 
o'clock in the morning. 

The blockade extends to the coasts of Greece and comprises the 
islands of Eubee, Zarite, and Sainte-Maure from a point situated 
at 39°20' north, 20°20' east of Greenwich, to a point situated 
39° 50' north, 22° 50' east of Greenwich, as well as the islands 
actually under the dependence or the occupation of the Royal 
Hellenic authorities. 

Vessels of third powers finding themselves in blockaded ports 
can freely depart until December 10 at 8 o'clock in the morning. 

The order has been given to the commander in chief of the 
blockading forces to proceed immediately to notify the local 
authorities of the present declaration. 

Paris, December 7, 1916. (Ibid., p. 93.) 

Export prohibitions and embargoes. — The extreme 
measures of the belligerents in regard to movement of 
goods in the World War led neutrals to prohibit the ex- 
port of certain articles. Sometimes neutral prohibitions 
were resorted to in order to prevent undue depletion of 



38 CONTRABAND AND BLOCKADE 

national stocks or resources and sometimes in order that 
foreign comimerce might not be closed by belligerent re- 
straints. Neutral states in close proximity to belligerent 
areas such as Denmark, Netherlands, Norway, Sweden, 
and Switzerland issued lists of articles of which export 
was prohibited. These lists varied in comprehensive- 
ness. The lists of Greece and Spain were short. The 
list of Sweden was long. That of Switzerland enumer- 
ating more than 200 articles, e.g., " acetones " or cate- 
gories, e.g., " telephone apparatus, as well as component 
parts thereof, notably microphones, field cables, insulat- 
ing rubber, electric batteries; electric ignition plugs for 
automobiles " (1915 Naval War College, International 
Law Topics, p. 53), was about average in number of 
named articles or categories. 

The belligerents placed restrictions or embargoes upon 
the export and transit of certain goods and blacklisted 
persons or firms so that the restraints on commerce be- 
came of serious consequence to many states. The Brit- 
ish list was long and many firms were placed on the 
blacklist. The German list contained hundreds or arti- 
cles arranged under careful classifications, as: I. Ani- 
mals and animal products: (a) Living animals; (b) 
meat, meat products, fish (not live) ; (c) milk, butter, 
animal fats; (d) refuse, bristles, bones, etc. Under 
each of the above, detailed lists were given. 

In spite of the self-imposed restrictions of neutral 
states, the belligerents continually added to the difficul- 
ties of carrying on neutral commerce. 

Belligerent embargoes. — (a) British. There were 
several orders prohibiting certain exports from Great 
Britain during 1914 and 1915. These were issued under 
" The customs and inland revenue act, 1879 ", " The ex- 
portation of arms act, 1900 ", and " The customs exporta- 
tion prohibition act, 1914." The proclamation of Feb- 
ruary 3, 1915, and the orders of March 2 and 18, of 
April 15, 21, and 26, of May 6 and 20, of June 2 and 



EMBARGOES 39 

24, and of July 8 and 19, were issued in pursuance of tno 
above acts. In August 1914 it was deemed expedient to 
consolidate the proclamation and orders and a new 
proclamation to that end was made. The proclamation 
named goods in three categories: (a) exportation pro- 
hibited to all destinations, (b) exportation prohibited to 
other than British possessions and protectorates, and (c) 
exportation prohibited to all foreign countries in Europe 
and on the Mediterranean and Black Seas other than 
France, Russia (except Baltic ports), Italy, Spain, and 
Portugal. 

(b) German. Under General Imperial Order of July 
31, 1914, embargoes were placed on exportation, transit, 
and carriage of arms, ammunition, powder, etc. A long 
list of prohibited exports was published and to this arti- 
cles were added by supplementary lists. This list be- 
came sufficiently comprehensive to include floating docks, 
truffles, and broccoli. No distinction was made as to 
destination in the German list. 

It might be argued that the belligerents prohibited the 
export of the articles named in their lists because these 
articles were essential for war purposes or needed for 
the war in progress. If this was the case, the list issued 
by one belligerent might be regarded by the other bellig- 
erent as the basis for the enumeration of articles which 
it would proclaim contraband and it would be difficult of 
a neutral to maintain that these articles which the bellig- 
erent had itself declared thus essential might not be 
placed in the list of contraband. 

Retaliation. — During the early days of the World War, 
action not sanctioned by international law but under 
Orders in Council was not held in British courts as con- 
clusive against neutrals. In the decision in the case of 
the Zamora in 1916 it was said, however : 

A prize court must, of course, deal judicially with all questions 
which came before it for determination, and it would be im- 
possible for it to act judicially if it were bound to take its orders 
from one of the parties to the proceedings. 



40 CONTRABAND AND BLOCKADE 

In the second place, the law which the prize court was to 
administer was not the national, or, as it was sometimes called, 
the municipal law, but the law of nations — in other words, 
international law. It was worth while dwelling for a moment on 
that distinction. Of course, the prize court was a municipal 
court and its decrees and orders owed their validity to municipal 
law. The law which it enforced might, therefore, in one sense, 
be considered a branch of municipal law. Nevertheless, the dis- 
tinction between municipal and international law was well defined. 
A court which administered municipal law was bound by and 
gave effect to the law as laid down by the sovereign State which 
called it into being. It need inquire only what that law was, 
but a court which administered international law must ascertain 
and give effect to a law which was not laid down by any particu- 
lar State, but originated in the practice and usage long observed 
by civilized nations in their relations with each other or in 
express international agreement. * * * 

The fact, however, that the prize courts in this country would 
be bound by acts of the imperial legislature afforded no ground 
lor arguing that they were bound by the executive orders of the 
King in council. * * * 

An order authorizing reprisals will be conclusive as to the 
facts which are recited as showing that a case for reprisals exists, 
and will have due weight as showing what, in the opinion of 
His Majesty's advisers, are the best or only means of meeting 
the emergency ; but this will not preclude the right of any party 
aggrieved to contend, or the right of the court to hold, that 
these means are unlawful, as entailing on neutrals a degree of 
inconvenience unreasonable, considering all the circumstances of 
the case. (1916 A.C. 77; 1922 Naval War College, International 
Law Documents, p. 126.) 

While the right of retaliation as against an enemy may 
depend upon the action of the enemy, the justification 
of retaliation toward an enemy does not create new 
rights for either belligerent as regard neutrals. The de- 
gree of retaliation as regards the offending belligerent 
will naturally depend upon the character of the act 
against which retaliatory measures are instituted. The 
contention sometimes advanced that one belligerent may 
proportion his retaliatory measures so as to remedy evils 
to which neutrals may have been or may later be sub- 
jected presumes that this belligerent is defending or 



EETALIATION" 41 

maintaining neutral rights which is not within the sphere 
of lawful belligerent action and even might give grounds 
for the other belligerent to claim a nonneutral relation 
between its opponent and the protected neutral. There 
may be a wide divergence of interpretation between neu- 
trals and belligerents as to their respective rights. It 
is entirely within the competence of a neutral to deter- 
mine what action it may take to maintain its rights and 
not for one of the belligerents to take upon itself the 
definition and defense of assumed neutral rights under a 
plea of retaliation. 

The neutral is, of course, liable to such inconvenience 
and restraint as may be incidental to the exercise of 
proper retaliatory action aimed directly at one belliger- 
ent by the other, but retaliatory measures should not be 
aimed directly or indirectly at neutrals. 

To argue that one belligerent may be justified in inter- 
fering with neutral rights under retaliatory measures to 
secure the common good is to prejudge the merits of the 
contest or to affirm as usually is the case of each bellig- 
erent that its cause is the just cause. 

Retaliation measures, 19 H. — The German proclama- 
tion of February 4, 1915, declared that after February 
18 the waters surrounding Great Britain and Ireland 
and the waters of the English Channel would be a war 
zone within which all enemy merchant vessels would be 
destroyed and within which neutral vessels expose them- 
selves to danger. The American Secretary of State 
viewed the act of Germany with " grave concern " and 
said on February 10, 

It is of course not necessary to remind the German Government 
that the sole right of a belligerent in dealing with neutral vessels 
on the high seas is limited to visit and search, unless a block- 
ade is proclaimed and effectively maintained, which this Govern- 
ment does not understand to be proposed in this case. To de- 
clare or exercise a right to attack and destroy any vessel enter- 
ing a prescribed area of the high seas without first certainly 



42 CONTRABAND AND BLOCKADE 

determining its belligerent nationality and the contraband char- 
acter of its cargo would be an act so unprecedented in naval 
warfare that this Government is reluctant to believe that the 
Imperial Government of Germany in this case contemplates it 
as possible. (1915 U.S. Foreign Relations, Supplement, p. 98.) 

The German Embassy in Washington had on Feb- 
ruary 7 transmitted to the Secretary of State a " Mem- 
orandum of the German Government concerning retalia- 
tion against Great Britain's illegal interference with 
trade between neutrals and Germany " in which mention 
was made of the British disregard of the Declaration of 
Paris and of the Declaration of London. 

This introduction of the idea of retaliation into the 
relations between the belligerents would threaten the 
rights of neutrals. If the neutrals were weak, vacillat- 
ing, or hesitating in maintaining their rights, the re- 
taliatory acts of belligerents would more and more im- 
pinge upon neutral rights. The belligerents might even 
argue that as neutral rights had been generally ad- 
mitted as equable as regards belligerents and neutrals 
on the supposition that they would be maintained, any 
failure to maintain these rights as against one belliger- 
ent would be an act in favor of that belligerent. Indeed 
during the World War each belligerent protested the 
failure of the United States to insist upon its neutral 
rights which according to the protests had been disre- 
garded by the other belligerent. 

Germany in supporting the establishing of the war 

zone about Great Britain and Ireland and in the English 

Channel, in a note of February 16, 1915, said, 

Germany is to all intents and purposes cut off from oversea 
supplies with the toleration, tacit or protesting, of the neutrals 
regardless of whether it is a question of goods which are absolute 
contraband or only conditional contraband or not contraband at 
all, following the law generally recognized before the outbreak of 
the war. On the other hand England with the indulgence of neu- 
tral governments is not only being provided with such goods as are 
not contraband or merely conditional contraband, namely, food- 



RETALIATION AND WAR ZONE 43 

stuffs, raw material, et cetera, although these are treated by 
England when Germany is in question as absolute contraband, 
but also with goods which have been regularly and unquestion- 
ably acknowledged to be absolute contraband. The German Gov- 
ernment believe that they are obliged to point out very particu- 
larly and with the greatest emphasis, that a trade in arms exists 
between American manufacturers and Germany's enemies which 
is estimated at many hundred million marks. 

The German Government have given due recognition to the fact 
that as a matter of form the exercise of rights and the tolera- 
tion of wrong on the part of neutrals is limited by their pleasure 
alone and involves no formal breach of neutrality. The German 
Government have not in consequence made any charge of formal 
breach of neutrality. The German Government can not, however, 
do otherwise, especially in the interest of absolute clearness in 
the relations between the two countries, than to emphasize that 
they, in common with the public opinion in Germany, feel them- 
selves placed at a great disadvantage through the fact that the 
neutral powers have hitherto achieved no success or only an un- 
meaning success in their assertion of the right to trade with 
Germany, acknowledged to be legitimate by international law, 
whereas they make unlimited use of their right to tolerate trade 
in contraband with England and our other enemies. Conceded 
that it is the formal right of neutrals not to protect their legiti- 
mate trade with Germany and even to allow themselves know- 
ingly and willingly to be induced by England to restrict such 
trade, it is on the other hand not less their good right, although 
unfortunately not exercised, to stop trade in contraband, espe- 
cially the trade in arms, with Germany's enemies. * • ■ * * 

The German Government repeat that in the scrupulous con- 
sideration for neutrals hitherto practised by them they have 
determined upon the measures planned only under the strongest 
compulsion of national self-preservation. Should the American 
Government at the eleventh hour succeed in removing, by virtue 
of the weight which they have the right and ability to throw 
into the scales of the fate of peoples, the reasons which have 
made it the imperative duty of the German Government to take 
the action indicated, should the American Government in par- 
ticular find a way to bring about the observation of the Declara- 
tion of London on the part of the powers at war with Germany 
and thereby to render possible for Germany the legitimate supply 
of foodstuffs and industrial raw materials, the German Govern- 
ment would recognize this as a service which could not be too 

73500—34 4 



44 CONTBABAND AND BLOCKADE 

highly estimated in favor of more humane conduct of war and 
would gladly draw the necessary conclusions from the new situa- 
tion thus created. (Ibid. p. 113.) 

Pages of somewhat similar correspondence brought 
replies and counter replies from various neutrals and 
belligerents, but little in the way of observance of the 
accepted laws of maritime warfare. 

The armed neutralities of 1780 and 1800 as well as the 
neutrality of the United States in the last decade of the 
eighteenth century and others showed that some means 
other than note writing might be essential to preserva- 
tion of neutral rights. Switzerland took such means for 
safeguarding its territorial and aerial jurisdiction from 
invasion. The Netherlands extended protection also to 
its maritime jurisdiction. The Hague Conventions, as 
article 10, Convention V, 1907, recognize the possibility 
that neutrals may be called upon to maintain their 
rights, and this article states, 

The fact of a neutral Power repelling even by force, attempts 
to violate its neutrality cannot be regarded as a hostile act. 

Summary. — Modern conditions, as shown in the many 
and lengthy communications during the World War, 
have changed the ideas as to the actual conduct of war. 

As to contraband, it has become increasingly difficult 
to employ intelligently such categories as contraband by 
nature because some article which by nature is specially 
essential to the life of a population at peace may be 
even absolutely essential to the state forces in time of 
war. A new invention or discovery during war may 
transform a category of articles, which at the beginning 
of the war were solely of use for the peaceful popula- 
tion, into essential war material. The list of such ar- 
ticles should ordinarily be determined by the belligerent 
and each belligerent would normally expect that the 
other might include in his contraband list any article 
included in the list of the opponent. There is also evi- 



SUMMARY 45 

dent in modern times the influence of the unfavorable 
attitude which one or more neutral states may take to- 
ward a contraband list which does not bear the marks 
of military need justifying interference with neutral 
goods. 

There is one category of goods the exemption from 
capture of which is generally recognized. That is, ar- 
ticles serving exclusively for the care of the sick and 
wounded. It is for the mutual advantage of both 
belligerents that such supplies be abundant. 

As to blockade, it may be sufficient to repeat what was 
said in article 18, and the comment upon that article, of 
the Declaration of London: 

The blockading forces must not bar access to the ports or to the 
coasts of neutrals. (1909 Naval War College, International Law 
Topics, p. 53.) 

World War practice and the general opinion of writers 
does not afford sanction to the claim of a right of vessels 
to pass through a neutral river to a belligerent port. The 
fluvial and maritime navigation of a neutral state is 
within the jurisdiction of that state and not subject to 
regulation by a belligerent. Outside of neutral jurisdic- 
tion the belligerent may act in accord with the laws of 
war. Belligerent forces may, of course, seize outside of 
neutral jurisdiction vessels having a belligerent destina- 
tion or having on board goods bound for a belligerent. 
Such vessels in Situation 1(b) would not, when brought 
before a prize court, be liable for penalties under the 
laws of blockade. 

SOLUTION 

(a) State X may declare all distinction between ab- 
solute and conditional contraband abolished, but this 
does not make all goods contraband nor does it give to 
state X a right to treat all articles bound for Y as 
contraband. 



46 SOLUTION 

(b) State Y may not lawfully maintain a blockade of 
the ports of state X to which there is access only through 
a navigable river of neutral state D, nor may state Y 
prevent vessels from entering the river Dana, though it 
may seize vessels outside neutral jurisdiction when trans- 
porting prohibited goods having an ultimate enemy 
destination. 



Situation II 

INDEPENDENT PHILIPPINE ISLANDS 

States X and Y are at war. Other states are neutral. 

Admitting that the Philippine Islands have been 
granted independence under the provisions of the pro- 
posed Act of January 17, 1933, x how should a seaplane 
of state X, which is under its own power and not de- 
pendent upon any ship, be regarded and what should be 
its treatment after arrival in the Port of Manila. 

(a) By the Philippine Government? 

(b) By the Yamba, a vessel of war of state Y which 
has been in Manila 20 hours? 

(c) By the Namba, a vessel of war of state N, which 
is convoying merchant vessels of neutral states ? 

(d) By the Usa, a vessel of war of the United States? 

SOLUTION 

1. In case the Philippine Islands obtain independence 
and are not neutralized : 

(a) The Philippine Government should intern the sea- 
plane. 

(b) The Ymnba may request assurances from the 
Philippine Government to the effect that the seaplane 
has been or immediately will be interned. 

(<?) The Namiba may inquire whether the seaplane has 
been or immediately is to be interned and may govern 
its movements accordingly. 



1 This act was rejected by resolution of the Philippine Legislature Octo- 
ber 17, 1933, and the act of March 24, 1934, was accepted by a resolution 
of May 1, 1934. These acts are printed at the end of the discussion of 
this Situation II. See post pp. Ill, 127. 

47 



48 INDEPENDENT PHILIPPINE ISLANDS 

(d) The Usa has no legal concern with the matter. 
2. In case the Philippine Islands are neutralized: 

(a) The Philippine Government should intern the 
seaplane. 

(b) If state Y is a party to the neutralization treaty, 
the Yamba may perform such services as rest upon that 
vessel under the treaty but if state Y is not a party to 
the treaty, even though other states may be parties, the 
Yamba may request assurances from the Philippine Gov- 
ernment to the effect that the seaplane has been or im- 
mediately will be interned. 

(c) If state N is a party to the neutralization treaty, 
the Namba may perform such services as rest upon that 
vessel under the treaty but if state N is not a party to 
the treaty even though other states may be parties, the 
Namba may inquire whether the seaplane has been or 
immediately is to be interned and may govern its move- 
ments accordingly. 

(d) If the United States is, as may be inferred from 
the Act of January IT, 1933, a party to the treaty of 
neutralization, the Usa may perform such services as rest 
upon that vessel under the treaty but if the United States 
is not a party, even though other states may be parties, 
the Usa has no legal concern with the matter. 

notes 1 

Independence of Philippine Islands. — If section 10 of 
the Act of January 17, 1933, had been brought into effect 
by a favorable vote instead of being defeated by an un- 
favorable vote, conditions would have implied a consid- 
erable change in the conduct of American affairs in the 
western Pacific Ocean. By this act the Philippine Islands 
were to become " a separate and self-governing nation " 
and their officials were to become " officers of the free and 
independent government of the Philippine Islands." The 



1 These notes were based upon the hypothesis admitting- independence 
under provisions of the act of January 17, 1933. Section 11, in regard 
to neutralization, is identical in the act of 1933 and in the act of 1934. 



NEUTRALIZATION 49 

President of the United States is requested at the earliest 
practicable date to open negotiations with foreign powers 
looking to the perpetual neutralization of the Islands. 
This date might presumably be as soon as the vote favor- 
able to independence under conditions of the 1933 act had 
been taken with view to launching the Commonwealth of 
the Philippine Islands as a perpetually neutralized state. 

Independence and neutralization. — By section 10 of the 
Act of January 17, 1933, the independence of the Philip- 
pine Islands was to be recognized 10 years after the new 
government under the constitution should be set up and 
all sovereignty of the United States was to be withdrawn. 
Under section 12, the President of the United States was 
to invite other states to recognize the independence of 
the Islands. This independence does not seem to be de- 
pendent upon the neutralization of the Islands though 
the wording of section 11 seems to anticipate that the 
negotiation of a neutralization treaty may precede inde- 
pendence. By this section, the President is requested 
" at the earliest practicable date " to negotiate for neu- 
tralization, " if and when Philippine independence shall 
have been achieved." 

Situation II may therefore be considered from two 
points of view, i.e., the Philippine Islands may be inde- 
pendent and neutralized or the Philippine Islands may 
be independent but not neutralized. 

Neutralization agreements. — Neutralization agree- 
ments have long been common and often have been re- 
garded as satisfactory methods of solving perplexing or 
otherwise insolvable difficulties. Broadly these agree- 
ments have been unilateral or multilateral, i.e., one or 
more states have signed an agreement to the effect that 
each would respect the neutrality of a named area or 
entity, or states have agreed with one another that they 
would maintain the neutrality of a named area or entity. 

Neutralization. — Some type of neutralization has often 
been resorted to when a state or states may be uncertain 
as to the immediate policy to be pursued in regard to the 



50 INDEPENDENT PHILIPPINE ISLANDS 

subject of neutralization. Often there has been created 
by the adoption of the phrase in conventional frame- 
work a sense of security which subsequent events have 
shown to be visionary. Like other international agree- 
ments, however, the relations depend upon the na- 
ture of the obligations assumed. Many of the treaties 
and conventions providing for neutralization fix the 
period as " in perpetuity ", " forever ", "lasting ", etc. 
A review of these treaties shows that these words have 
been very loosely used. Even the clause of the Treaty 
of Vienna, 1815, relating to neutralization was not 
strictly observed. The provisions were that " the town 
of Cracow, with its territory, is declared to be forever 
a free, independent, and strictly neutral city, under the 
protection of Austria, Russia and Prussia ", with the 
further provision that " the Courts of Russia, Austria, 
and Prussia engage to respect and to cause to be always 
respected, the neutrality of the free town of Cracow and 
its territory." The action of these powers in 1846 in 
annexing this territory to Austria showed that such 
terms as " forever " and " always " were not to be taken 
literally. Action under other similar treaties shows that 
"perpetual " and like words used in neutralization 
agreements implies that no predetermined date has been 
fixed upon for termination of the neutralized status and 
little more. It is a fact that Switzerland has been con- 
sidered as neutralized and that at Paris, November 20, 
1815, Austria, France, Great Britain, Prussia and 
Russia, acknowledged, " in the most formal manner, by 
the present act that the neutrality and inviolability of 
Switzerland and her independence of all foreign in- 
fluence, enter into the true interests of the policy o£ the 
whole of Europe." Switzerland has, however, from time 
to time as wars arose informed the foreign powers that 
the government would " maintain and defend " her neu- 
trality by all the means in her power and Switzerland 
has ordinarily had a well-trained army. 



BELGIUM, 1914 51 



Luxemburg neutralized under the Great Powers in 
1867 and without defenses was a matter of controversy 
during the Franco-Prussian War, 1870, and overrun dur- 
ing the World War, troops entering as early as August 
2, 1914. Lord Stanley, who had participated in the 
negotiation of the treaty in regard to the neutralization 
of Luxemburg, said of the obligation, " Such a guarantee 
has obviously rather the character of a moral sanction to 
the arrangements which it defends than that of a con- 
tingent liability to make war." 

In the treaty of 1831 in regard to Belgium, it was 
agreed that it " shall form an independent and per- 
petually neutral state " and this was reaffirmed in 1839. 
In the Franco-Prussian War, however, Great Britain 
made treaties with France and with Prussia to the effect 
that if either should violate Belgian territory, Great Bri- 
tain would for the defense of Belgium go in on the side of 
the other. Whether the simple moral sanction would have 
been sufficient to secure respect for the Belgian neutrality 
seems at least to have been doubted by the three powers 
parties to these treaties of 1870. Their doubts seem to 
have been justified by events of 1914. 

It would seem from instances of neutralization that the 
risks consequent upon violation of neutralization agree- 
ments should be at least commensurate to the advan- 
tages which might be anticipated from disregard of 
these agreements as such sanctions only have proven 
effective. 

Belgian position, 1914- — Belgium was in early 1914 
under the provisions of the neutralization treaty, but 
had maintained an army and fortifications. The note 
communicated to the German Minister by the Belgian 
Minister of Foreign Affairs, M. Davignon, on August 3, 
1914, at 7 a.m. shows the official attitude toward the 
condition that had arisen as follows : 

The German Government stated in their note of August 2, 1914, 
that according to reliable information French forces intended to 
march on the Meuse via Givet and Namur, and that Belgium, 



52 INDEPENDENT PHILIPPINE ISLANDS 

in spite of the best intentions, would not be in a position to 
repulse, without assistance, an advance of French troops. 

The German Government, therefore, considered themselves 
compelled to anticipate this attack and to violate Belgian terri- 
tory. In these circumstances, Germany proposed to the Belgian 
Government to adopt a friendly attitude toward her, and under- 
took, on the conclusion of peace, to guarantee the integrity of the 
Kingdom and its possessions to their full extent. The note added 
that if Belgium put difficulties in the way of the advance of 
German troops, Germany would be compelled to consider her as 
an enemy, and to leave the ultimate adjustment of the relations 
between the two States to the decision of arms. 

This note has made a deep and painful impression upon the 
Belgian Government. 

The intentions attributed to France by Germany are in con- 
tradiction to the formal declarations made to us on August 1, in 
the name of the French Government. 

Moreover, if, contrary to our expectation, Belgian neutrality 
should be violated by France, Belgium intends to fulfil her inter- 
national obligations and the Belgian army would offer the most 
vigorous resistance to the invader. 

The treaties of 1839, confirmed by the treaties of 1870, vouch 
for the independence and neutrality of Belgium under the guar- 
antee of the powers, and notably of the Government of His 
Majesty the King of Prussia. 

Belgium has always been faithful to her international obliga- 
tions, she has carried out her duties in a spirit of loyal imparti- 
ality and she has left nothing undone to maintain and enforce 
respect for her neutrality. 

The attack upon her independence with which the German 
Government threaten her constitutes a flagrant violation of inter- 
national law. No strategic interest justifies such a violation of 
law. 

The Belgian Government, if they were to accept the proposals 
submitted to them, would sacrifice the honor of the nation and 
betray their duty toward Europe. 

Conscious of the part which Belgium has played for more than 
SO years in the civilization of the world, they refuse to believe 
that the independence of Belgium can only be preserved at the 
price of the violation of her neutrality. 

If this hope is disappointed the Belgian Government are firmly 
resolved to repel, by all the means in their power, every attack 
upon their rights. (1917 Naval War College, International Law 
Documents, p. 53.) 



BELGIUM, 1914 53 

The next day the German Minister was handed his 
passports and the British, French, and Kussian minis- 
ters were " as guaranteeing powers " requested to coop- 
erate in the defense of Belgian territory. 

On August 4, all Belgian diplomatic representatives 
abroad were instructed to bring the action of their gov- 
ernment to the attention of the states to which they 
were accredited. 

A few days later the hope was officially expressed 
that the regime of neutralization would be permitted to 
continue in the Belgian dependencies in Africa partic- 
ularly referring to the General Act of the Berlin Con- 
ference signed February 26, 1885, and article 11. 

When the Austro-Hungarian declaration of war was 
received, the Belgian Government replied, August 29, 
1914, in a manner showing recognition of Belgian obli- 
gations under the treaty of neutralization, saying, 

Belgium has always entertained friendly relations with all 
her neighbors without distinction. She had scrupulously ful- 
filled the duties imposed upon her by her neutrality. If she 
has not been able to accept Germany's proposals, it is because 
these proposals contemplated the violation of her engagements 
toward Europe, engagements which form the conditions of the 
creation of the Belgian Kingdom. She has been unable to admit 
that a people, however weak they may be, can fail in their duty 
and sacrifice their honor by yielding to force. The government 
have waited, not only until the ultimatum had expired, but also 
until Belgian territory had been violated by German troops, 
before appealing to France and Great Britain, guarantors of her 
neutrality, under the same terms as are Germany and Austria- 
Hungary, to cooperate in the name and in virtue of the treaties 
in defense of Belgian territory. By repelling the invaders by 
force of arms, she has not even committed an hostile act as laid 
down by the provisions of article 10 of the Hague Convention 
respecting the rights and duties of neutral powers. 

Germany herself has recognized that her attack constitutes 
a violation of international law, and, being unable to justify it, 
she has pleaded her strategical interests. 

Belgium formally denies the allegation that Austrian and Hun- 
garian nationals have suffered treatment in Belgium contrary 
to the most primitive demands of humanity. (Ibid., p. 58.) 



54 INDEPENDENT PHILIPPINE ISLANDS 

Neutralization of the Philippine Islands. — As under 
section 11 of the Act of January 17, 1933, the President 
of the United States is requested to enter upon negotia- 
tions for the neutralization of the Philippine Islands, 
the American Government would naturally be supposed 
to have a plan to suggest and to be prepared to become a 
party to the " perpetual neutralization." The negotia- 
tion is not by the Act restricted to any specified powers 
but would seem to imply that the invitation to negoti- 
ate might be to all powers desiring to take part in 
the negotiation, at least, the powers mentioned in sec- 
tion 12, viz : those in diplomatic correspondence with the 
United States would expect to be invited as these are to 
be invited to recognize the independence of the Philip- 
pine Islands when it is attained. 

There would be certain complications owing to exist- 
ing treaties in regard to relations in the western Pacific. 
The Washington Conference of 1921-22 was not merely 
upon limitation of armament but also according to the 
official agenda upon Pacific and Far Eastern questions. 
It was recognized in this Conference that naval power 
might be conditioned on other factors than ships and 
article XIX of the Treaty Limiting Naval Armament 
contained the following provisions: 

The United States, the British Empire and Japan agree that 
the status quo at the time of the signing of the present Treaty, 
with regard to fortifications and naval bases, shall be maintained 
in their respective territories and possessions specified hereunder. 

(1) The insular possessions which the United States now holds 
or may hereafter acquire in the Pacific Ocean, except (a) those 
adjacent to the coast of the United States, Alaska and the Panama 
Canal Zone, not including the Aleutian Islands, and (&) the 
Hawaiian Islands ; 

(2) Hongkong and the insular possessions which the British 
Empire now holds or may hereafter acquire in the Pacific Ocean, 
east of the meridian of 110° east longitude, except (a) those 
adjacent to the coast of Canada, (&) the Commonwealth of Aus- 
tralia and its Territories, and (c) New Zealand; 

(3) The following insular territories and possessions of Japan 
in the Pacific Ocean, to wit ; the Kurile Islands, the Bonin Islands, 



AMERICA AND THE PHILIPPINES 55 

Amami-Oshima, the Loochoo Islands, Formosa and the Pescadores, 
and any insular territories or possessions in the Pacific Ocean 
which Japan may hereafter acquire. 

The maintenance of the status quo under the foregoing pro- 
visions implies that no new fortifications or naval bases shall be 
established in the territories and possessions specified; that no 
measures shall be taken to increase the existing naval facilities for 
the repair and maintenance of naval forces, and that no increase 
shall be made in the coast defences of the territories and pos- 
sessions above specified. This restriction, however, does not pre- 
clude such repair and replacement of worn-out weapons and equip- 
ment as is customary in naval and military establishments in time 
of peace. (1921 Naval War College, International Law Docu- 
ments, p. 301.) 

If the neutralization of the Philippine Islands takes 
place, it will evidently be of an area of which the military 
status is already subject to international restriction. 
Subject to these restrictions the Philippine Islands would 
be unable to establish any very strong military power. 
The withholding of the military and naval bases limited 
to the strength of February 6, 1921, would scarcely be of 
great value to the United States as these areas would be 
open to attack and occupation by any enemy in time of 
war wdiile adjacent Philippine areas would be neutralized. 

American commitments in the Philippines. — Under 
article 3 of the Treaty of 1898, Spain ceded to the United 
States the Philippine Islands and the United States paid 
Spain $20,000,000. Under other articles of this treaty 
Spanish ships and merchandise were for a period of 
ten years to be admitted to the Islands on the same terms 
as American, the return of prisoners of war and disposi- 
tion of other persons were provided for, outstanding 
claims were allocated, and all public properties of Spain 
such as buildings, wharves, military structures, public 
highways, and other immovable property passed to the 
United States. 

At the Washington Conference of Limitation of Naval 
Armament, 1921, Japan wished assurances as to the at- 
titude of the United States and Great Britain toward 



56 INDEPENDENT PHILIPPINE ISLANDS 

increase of fortifications and naval bases in the Pacific. 
After discussion, article XIX, mentioned above, was in- 
serted in the Treaty Limiting Naval Armament. How 
far such a restriction would be embodied in any agree- 
ment setting up a Philippine state should be a matter of 
careful consideration. 

Under the Act of January 17, 1933, the proposal of 
section 5 was that " land or other property " which had 
been designated by the President of the United States 
for military and other reservations of the Government 
of the United States should not pass to the Philippine 
Government, and may be redesignated by the President 
within 2 years after the proclamation of withdrawal of 
the sovereignty of the United States. If neutralization 
should take place under section 11 of the Act, the value 
to the United States of military bases in the status quo of 
1922 in a foreign state would be doubtful. 

Neutralization of Panama Canal. — In the preamble of 
the treaty between the United States and Great Britain, 
1901, regarding the Panama Canal mention is made of 
the " general principle " of neutralization and in article 
3 this is referred to as substantially that " embodied in 
the Convention of. Constantinople, signed the 28th Oc- 
tober, 1888, for the free navigation of the Suez Canal," 
viz: 

1. The canal shall be free and open to the vessels of commerce 
and of war of all nations observing these rules, on terms of en- 
tire equality so that there shall be no discrimination against any 
such nation, or its citizens or subjects, in respect of the condi- 
tions or charges of traffic, or otherwise. Such conditions and 
charges of traffic shall be just and equitable. 

2. The canal shall never be blockaded, nor shall any right of 
war be exercised nor any act of hostility be committed within 
it. The United States, however, shall be at liberty to maintain 
such military police along the canal as may be necessary to pro- 
tect it against lawlessness and disorder. 

3. Vessels of war of a belligerent shall not revictual nor take 
any stores in the canal except so far as may be strictly necessary ; 
and the transit of such vessels through the canal shall be effected 
with the least possible delay in accordance with the regulations 



NEUTRALIZATION OF AALAND ISLANDS 57 

in force, and with only such intermission as may result from the 
necessities of the service. 

Prizes shall be in all respects subject to the same rules as 
vessels of war of the belligerents. 

4. No belligerent shall embark or disembark troops, munitions 
of war, or warlike materials in the canal, except in case of acci- 
dental hindrance of the transit, and in such case the transit shall 
be resumed with all possible dispatch. 

5. The provisions of this article shall apply to waters adjacent 
to the canal, within 3 marine miles of either end. Vessels of war 
of a belligerent shall not remain in such waters longer than 24 
hours at any one time, except in case of distress, and in such case, 
shall depart as soon as possible ; but a vessel of war of one bel- 
ligerent shall not depart within 24 hours from the departure of a 
vessel of war of the other belligerent. 

6. The plant, establishments, buildings, and all work necessary 
to the construction, maintenance, and operation of the canal shall 
be deemed to be part thereof, for the purposes of this treaty, and 
in time of war, as in time of peace, shall enjoy complete immunity 
from attack or injury by belligerents, and from acts calculated to 
impair their usefulness as part of the canal. (32 U.S.Stat., Pt. II, 
pp. 1903, 1904.) (1929 Naval War College, International Law Sit- 
uations, p. 22.) 

Neutralization of Aalancl Islands, 1921. — One of the 
more recent conventions relating to neutralization was 
that in regard to the Aalancl Islands signed by the states 
bordering on the Baltic and by British and Italian 
representatives, October 22, 1921. This convention, 
which defines the area of the Aaland Islands in article 
2, had as its object " the nonfortification and neutraliza- 
tion of the Aaland Islands in order that these islands 
may never become a cause of danger from the military 
point of view " and for the maintenance of this aim the 
powers may individually or jointly ask the Council of 
the League of Nations to decide upon the measures to be 
taken and the parties to the convention agree to assist 
in these measures. The method of determining upon the 
measures was outlined as follows : 

When, for the purposes of this undertaking, the Council is 
called upon to make a decision under the above conditions, it 
will invite the Powers which are parties to the present Conven- 



58 INDEPENDENT PHILIPPINE ISLANDS 

tion, whether Members of the League or not, to sit on the 
Council. The vote of the representative of the Power accused of 
having violated the provisions of this Convention shall not be 
necessary to constitute the unanimity required for the Council's 
decision. 

If unanimity cannot be obtained, each of the High Contracting 
Parties shall be entitled to take any measures which the Council 
by a two-thirds majority recommends, the vote of the representa- 
tive of the Power accused of having violated the provisions of 
this Convention not being counted. (1924 Naval War College, 
International Law Documents, p. 59.) 

That the high contracting parties " undertake to as- 
sist " or are " entitled to take any measures which the 
Council by a two-thirds majority recommends " does not 
necessarily commit any of the high contracting parties 
to any predetermined action as, these powers would be 
members of the council for deciding the measures to be 
taken. 

The Aaland Islands remain an integral part of the 
Republic of Finland and Finland may take measures for 
the defense of the neutrality of the islands and of the 
Finnish mainland in case of sudden attack and pending 
intervention by the high contracting parties under terms 
of the convention. 

Civil and military aircraft. — In 1919 a convention for 
the regulation of aerial navigation was signed at Paris. 
The general provisions of this convention have been ap- 
proved and have been embodied in other agreements and 
proposed agreements. Distinction was made between 
private and state aircraft and also in the categories of 
state aircraft. Some restrictions were also imposed 
upon aircraft. 

Art. 30. The following shall be deemed to be State aircraft : 

(a) Military aircraft. 

(b) Aircraft exclusively employed in State service, such as 
posts, customs, police. 

Every other aircraft shall be deemed to be a private aircraft. 

All state aircraft other than military, customs and police air- 
craft shall be treated as private aircraft and as such shall be 
subject to all the provisions of the present Convention. 



SEAPLANES AND NEUTRALITY 59 

Art. 31. Every aircraft commanded by a person in military 
service detailed for the purpose shall be deemed to be a military 
aircraft. 

Art. 32. No military aircraft of a contracting State shall fly 
over the territory of another contracting State nor land thereon 
without special authorisation. In case of such authorisation the 
military aircraft shall enjoy, in principle, in the absence of 
special stipulation the privileges which are customarily accorded 
to foreign ships of war. 

A military aircraft which is forced to land or which is re- 
quested or summoned to land shall by reason thereof acquire no 
right to the privileges referred to in the above paragraph. 

Art. 33. Special arrangements between the States concerned 
will determine in what cases police and customs aircraft may be 
authorised to cross the frontier. They shall in no case be en- 
titled to the privileges referred to in Article 32. (XI League of 
Nations Treaty Series, p. 173 (1922).) 

These principles, somewhat elaborated, formed a part 
of the rules drawn up at The Hague in 1923 as is stated 
in the report of the Commission. It was recognized, 
however, that " a clear distinction must be made between 
aircraft that form a part of the combatant forces in time 
of war and those which do not." Accordingly a rule 
was drawn up as article 3 that "A military aircraft shall 
bear an external mark indicating its nationality and mil- 
itary character " while article 5 stated, " Public non-mil- 
itary aircraft other than those employed for customs or 
police purposes shall in time of war bear the same ex- 
ternal marks, and for the purposes of these rules shall be 
treated on the same footing, as private aircraft." (1924 
Naval War College, International Law Documents, p. 
110.) 

Seaplanes and neutral waters. — It is admitted in all 
proposed regulations that aircraft in distress may enter 
neutral jurisdiction. Ked Cross aircraft are also per- 
mitted to enter, as are aircraft on board ships of war. 

It has further been generally held that an aircraft 
taking off from a vessel of war within neutral waters or 
entering the neutral aerial jurisdiction is liable to intern- 
ment. 

73500—34 5 



60 INDEPENDENT PHILIPPINE ISLANDS 

The report of the Commission of Jurists at The Hague, 
in 1923, stated that, 

The obligation on the part of the neutral Power to intern covers 
not only the aircraft, but its equipment and contents. The obli- 
gation is not affected by the circumstances which led to the mili- 
tary aircraft coming within the jurisdiction. It applies whether 
the belligerent aircraft entered neutral jurisdiction, voluntarily 
or involuntarily, and whatever the cause. It is an obligation owed 
to the opposing belligerent and is based upon the fact that the 
aircraft has come into an area where it is not subject to attack 
by its opponent. * * * 

The obligation to intern belligerent military aircraft entering 
neutral jurisdiction entails also the obligation to intern the per- 
sonnel. These will in general be combatant members of the bel- 
ligerent fighting forces, but experience has already shown that in 
time of war military aeroplanes are employed for transporting 
passengers. As it may safely be assumed that in time of war a 
passenger would not be carried on a belligerent military aircraft 
unless his journey was a matter of importance to the Government, 
it seems reasonable also to comprise such passengers in the cate- 
gory of persons to be interned. 

"article 42. 

"A neutral Government shall use the means at its disposal to 
prevent the entry within its jurisdiction of belligerent military 
aircraft and to compel them to alight if they have entered such 
\urisdiction. 

"A neutral Government shall use the means at its disposal, to 
intern any belligerent military aircraft which is within its juris- 
diction after having alighted for any reason whatsoever, together 
with its crew and the passengers, if any." (1924 Naval War Col- 
lege, International Law Documents, p. 133.) 

Article 46 of these rules speaks of " departure by air 
of any aircraft." Whether a seaplane arriving and de- 
parting by water would receive different treatment is not 
stated. It might be queried whether aerial or maritime 
navigation is the auxiliary or principal fact in use of a 
hydroplane. Article 42 apparently is drawn with refer- 
ence to aircraft which in flight enter neutral jurisdic- 
tion, though the second paragraph might strictly be ex- 
tended to a seaplane which had alighted outside and 
navigated within neutral jurisdiction. 



GEEMAN PROTEST, 1915 61 

• German protest to United States , 1915. — In a com- 
munication of the German Ambassador, J. Bernstorff, 
of January 19, 1915, to the Secretary of State, there 
was mentioned certain data which the Ambassador un- 
derstood to be reliable in regard to hydro-aeroplanes. In 
concluding, the Ambassador said, 

There is no doubt that hydro-aeroplanes must be regarded as 
war vessels whose delivery to belligerent states by neutrals 
should be stopped under Article 8 of the thirteenth convention 
of the Second Hague Conference of October 18, 1907. [Art. 8. A 
neutral Government is bound to employ the means at its disposal 
to prevent the fitting out or arming of every vessel within its 
jurisdiction which it has reason to believe is intended to cruise, 
or engage in hostile operations, against a Power with which that 
Government is at peace. It is also bound to display the same 
vigilance to prevent the departure from its jurisdiction of every 
vessel intended to cruise, or engage in hostile operations, which 
has been, within the said jurisdiction, adapted, entirely or in 
part, for use in war.] Hydro-aeroplanes are not mentioned by 
name in the convention simply because there was none in 1907 
at the time of the conference. 

On the supposition that hydro-aeroplanes are delivered to 
belligerents against the wishes of the Government of the United 
States, I have the honor to bring the foregoing to your excel- 
lency's kind knowledge. (1915 U.S. Foreign Relations, Supple- 
ment, p. 776.) 

To this communication the Secretary of State made a 
somewhat full reply on January 29, 1915: 

Excellency: I have the honor to acknowledge the receipt of 
your excellency's note of the 19th instant, and in reply have 
to inform you that the statements contained in your excellency's 
note have received my careful consideration in view of the earnest 
purpose of this Government to perform every duty which is im- 
posed upon it as a neutral by treaty stipulation and international 
Jaw. 

The essential statement in your note, which implies an obliga- 
tion on the part of this Government to interfere in the sale and 
delivery of hydro-aeroplanes to belligerent powers, is : 

11 There is no doubt that hydro-aeroplanes must be regarded as 
war vessels whose delivery to belligerent states by neutrals should 
be stopped under Article 8 of the thirteenth convention of the 
Second Hague Conference of October 18, 1907." 



62 INDEPENDENT PHILIPPINE ISLANDS 

As to this assertion of the character of hydro-aeroplanes I 
submit the following comments : The fact that a hydro-aeroplane 
is fitted with apparatus to rise from and alight upon the sea 
does not in my opinion give it the character of a vessel any more 
than the wheels attached to an aeroplane fitting it to rise from 
and alight upon land give the latter the character of a land ve- 
hicle. Both the hydro-aeroplane and the aeroplane are essen- 
tially aircraft; as an aid in military operations they can only 
be used in the air. The fact that one starts its flight from the 
surface of the sea and the other from the land is a mere inci- 
dent which in no way affects their aerial character. 

In view of these facts I must dissent from your excellency's 
assertion that " there is no doubt that hydro-aeroplanes must be 
regarded as war vessels," and consequently I do not regard the 
obligations imposed by treaty or by the accepted rules of inter- 
national law applicable to aircraft of any sort. 

In this connection I further call to your excellency's attention 
that according to the latest advices received by this Department 
the German Imperial Government include " balloons and flying 
machines and their component parts " in the list of conditional 
contraband, and that in the Imperial prize ordinance, drafted 
September 30, 1909, and issued in the Reichs-Gesetzblatt on 
August 3, 1914, appear as conditional contraband " airships and 
flying machines" (Article 23, section 8). It thus appears that 
the Imperial Government have placed and still retain aircraft 
of all descriptions in the class of conditional contraband, for which 
no special treatment involving neutral duty is, so far as I am 
advised, provided by any treaty to which the United States is a 
signatory or adhering power. 

As in the views of this Department the provisions of Convention 
XIII of the Second Hague Conference do not apply to hydro- 
aeroplanes I do not consider it necessary to discuss the question 
as to whether those provisions are in force during the present 
war. (Ibid., p. 780.) 

Probably the statement of the Secretary of State that 
he did " not regard the obligations imposed by treaty or 
by the accepted rules of international law applicable to 
aircraft of any sort " was to be taken merely as empha- 
sizing his interpretation of neutral obligations as re- 
gards this particular case rather than as regards all 
possible cases. 

Analogy of aerial and maritime rules. — It has often 
been maintained that aerial and maritime rules should 



DUE DILIGENCE AND AIECEAFT 63 

be the same. Many of these ideas are due to the use for 
aircraft of the same words and phrases that are used for 
marine craft. Such words as ships, navigation, landing, 
pilots, registry, papers, right-of-way, etc., are in the ma- 
rine and aerial vocabularies but the application may be 
quite unlike. 

The analogy fails when consideration is given to the 
nature of ships of the sea and of the air, speed and 
range of navigation, place of landing, use of pilots, etc. 
These differences must be taken into the reckoning when 
the responsibility of the neutral is to be estimated even 
under the rule of due diligence. 

Due diligence as to aircraft. — The rule requiring of a 
neutral state exercise of due diligence in maintaining 
its neutrality has been interpreted as obliging the neutral 
state to use the " means at its disposal." If the inter- 
pretation put upon the words, " due diligence ", in the 
Alabama case, i.e. diligence in " exact proportion to the 
risks which either of the belligerents may be exposed 
from failure to fulfill the obligations of neutrality " is 
to be applied to aircraft, the safe rule would be to pro- 
hibit under liability to internment the entrance of air- 
craft to neutral jurisdiction. 

The risk from the entrance to neutral territory of bel- 
ligerent land forces entails internment for the period of 
the war. Under certain conditions the internment of 
vessels of a belligerent may be necessary in order that 
neutrality may be maintained but ordinarily the move- 
ments of vessels are sufficiently under control so that 
neither belligerent is prejudiced unduly if a degree of 
equality in granting privileges essential to keep the ves- 
sels seaworthy is granted. The risk from aircraft is 
relatively so much greater that the neutral has forbidden 
entrance to neutral jurisdiction under penalty of intern- 
ment except to hospital aircraft. 

Naval War College opinion, 1912.— While aircraft had 
been only moderately developed before 1912, the Naval 
War College had given attention to certain aspects of 



64 INDEPENDENT PHILIPPINE ISLANDS 

aerial navigation. In referring to the analogy of taking 
coal for naval vessels and gas for balloons, in the Situa- 
tions for 1912 it was said, 

Even with this extension of the right of coaling, the entrance 
of a balloon into neutral territory may be in marked contrast to 
the entrance of a vessel of war into a neutral port. One bellig- 
erent may easily learn of the entrance of a vessel of his enemy 
to a neutral port. The course which the vessel will follow on 
departure, the time of sojourn, and other facts may be reasonably 
determined. A vessel in a neutral port must ordinarily put to 
sea before reaching a home or an enemy port. A belligerent would 
ordinarily, therefore have an opportunity to meet and to engage 
the vessel of his opponent in an area where battle is lawful and 
without material risk to the neutral. 

It is possible, however, that the territory of States might be so 
situated that a neutral State might be directly between the two 
belligerents ; e.g., if war existed between Germany and Spain. 
In such a case would the bringing of a war balloon to the French 
frontier from Germany place France under any obligation to per- 
mit the balloon to enter and take the necessary gas to make it 
navigable? If German balloons were permitted to enter French 
territory, take gas, and from points of advantage attack Spanish 
forces and territory, would such permission by France be analogous 
to the entrance of German troops, or would it be the use of 
French territory as a base? Whether or not the right of absolute 
sovereignty in the air is in the subjacent State, certainly France 
would be under no obligation to receive a German war balloon 
into its territory when France is neutral except on ground of 
humanity or vis major. France could scarcely permit German 
war balloons to use French territory as a point from which to 
attack Spain, and if German forces should enter French territory 
internment would be the penalty. (1921 Naval War College, In- 
ternational Law Situations, p. 85.) 

It was at that time pointed out that the situation would 

be modified if the aircraft maintained continuous physi- 
cal contact and was appurtenant to a cruiser or similar 
vessel. 

Hague rides, 1923. — The Commission of Jurists to 
Consider and Report upon the Rules of Warfare which 
was appointed under provisions of a resolution of the 
Washington Conference of 1922 reported upon radio and 
aircraft in 1923. In this report it was said, 



DEPENDENT AIKCEAFT 65 

No attempt has been made to formulate a definition of the 
term " aircraft," nor to enumerate the various categories of 
machines which are covered by the term. A statement of the 
broad principle that the rules adopted apply to all types of air- 
craft has been thought sufficient, and article 1 has been framed 
for this purpose. 

" ARTICLE 1 

" The rules of aerial warfare apply to all aircraft, whether 
lighter or heavier than air, irrespective of whether they are, or 
are not, capable of floating on the water." (1924 Naval War 
College, Int. Law Documents, p. 108.) 

While these rules have not been ratified, they em- 
bodied the opinion of the delegates from six naval 
powers and are therefore worthy of careful considera- 
tion. 

Dependent aircraft. — It has gradually become cus- 
tomary to add to the naval righting forces aircraft car- 
riers or vessels having facilities for carriage of aircraft. 
For some years it had generally been the rule that such 
aircraft should be regarded while on the ship as part 
of the ship. This matter had been considered at The 
Hague in 1923 and the Report of the Commission ex- 
plains that, 

The customary rules of international law authorise the admis- 
sion of belligerent warships to neutral ports and waters. There 
is no obligation upon neutral States to admit warships belong- 
ing to belligerent States, but it is not in general refused. The 
admission of belligerent military aircraft, however, is prohibited 
by article 40, and account must therefore be taken of the fact 
that it has now become the practice for warships to have a 
certain number of aircraft assigned to them and that these 
aircraft usually rest on board the warship. While they remain 
on board the warship they form part of it, and should be re- 
garded as such from the point of view of the regulations issued 
by the neutral States. They will therefore be allowed to enter 
the neutral jurisdiction on the same footing as the warship on 
board which they rest, but they must remain on board the 
warship and must not commit any act which the warship is not 
allowed to commit. 



66 INDEPENDENT PHILIPPINE ISLANDS 

" ARTICLE 4 1 . 

" Aircraft on board vessel of war, including aircraft-carriers, 
shall be regarded as part of such vessels." (1924 Naval War 
College, Int. Law Documents, p. 131.) 

Aircraft over neutral jurisdiction. — The practice and 
general opinion before the end of the World War sup- 
ported the right of a neutral state to exclude all bellig- 
erent aircraft from the air above its land. Aircraft 
were generally excluded from air above the land by proc- 
lamation or decree of some kind. The early ordinance 
of Switzerland, August 4, 1914, was explicit as to the 
right of the Swiss Government to control this aerial 
space. 

17. As to aviation, attention will be given to what follows: 

(a) Balloons and air craft not belonging to the Swiss Army 
can not rise and navigate in the aerial space situated above our 
territory unless the persons ascending in the apparatus are 
furnished with a special authorization, delivered in the territory 
occupied by the army, by the commander of the army ; in the 
rest of the country, by the Federal military department; 

(&) The passage of all balloons and air craft coming from 
abroad into our aerial space is forbidden. It will be opposed if 
necessary by all available means and these air craft will be 
controlled whenever that appears advantageous. 

(c) In case of the landing of foreign balloons or air craft, their 
passengers will be conducted to the nearest superior military com- 
mander who will act according to his instructions. The ap- 
paratus and the articles which it contains ought, in any case, 
to be seized by the military authorities or the police. The Fed- 
eral military department or the commander of the army will de- 
cide what ought to be done with the personnel and material of 
a balloon or air craft coming into our territory through force 
majeure and when there appears to be no reprehensible inten- 
tion or negligence. (1916 Naval War College, International Law 
Topics, p. 73.) 

The Proclamation of the United States in regard to 
the Panama Canal Zone and the cities and harbors of 
Panama and Colon was comprehensive : 

Rule 15. — Air craft of a belligerent power, public or private, 
are forbidden to descend or arise within the jurisdiction of the 
United States at the Canal Zone, or to pass through the air 



INTERNMENT 67 

spaces above the lands and waters within said jurisdiction. 
(1915 Naval War College, International Law Topics, p. 14.) 

Internment. — Internment of vessels of war is a rela- 
tively modern practice. It first became generally recog- 
nized in the Russo-Japanese War in 1904^05. The 
Hague Convention respecting the Rights and Duties of 
Neutral Powers in Maritime Law of 1907, Article 24, 
stated the right of internment and outlined the proce- 
dure of internment. Provision was made for interning 
vessels of war in many of the neutrality proclamations 
and regulations during the World War. 

The analogous principle had been earlier applied to 
belligerent land forces entering upon neutral territory. 

The internment of aircraft unless attached to a vessel 
was the rule during the World War and prohibitions of 
flight over neutral jurisdiction were common as in the 
Italian decree of September 3, 1914. 

Article 1. It is forbidden for any apparatus or means of aerial 
locomotion, such as dirigibles, aeroplanes, hydroplanes, balloons, 
flying kites, or captive balloons, etc., to fly or ascend over any 
points of territory of the state or colonies or of the territorial 
seas, except for those established by military authorities and for 
other aeronautics that are authorized from time to time by the 
ministers of war and navy. No permission will be granted to 
any foreigners. 

Aircraft and outbreak of World War. — When the Ger- 
man Ambassador withdrew from Paris, August 3, 1914, 
he said in his letter to the President of the Council, M. 
Viviani : 

The German administrative and military authorities have 
established a certain number of flagrantly hostile acts committed 
on German territory by French military aviators. Several of 
these have openly violated the neutrality of Belgium by flying 
over the territory of that country ; one has attempted to destroy 
buildings near Wesel; others have been seen in the district of 
the Eifel ; one has thrown bombs on the railway near Carlsruhe 
and Nuremberg. 

I am instructed, and I have the honor to inform your excel- 
lency that in the presence of these acts of aggression the Ger- 
man Empire considers itself in a state of war with France in 
consequence of the acts of this latter power. (1917 Naval War 
College, International Law Documents, p. 103.) 



68 INDEPENDENT PHILIPPINE ISLANDS 

In the reply M. Viviani said, 

I formally challenged the inaccurate allegations of the Am- 
bassador, and for my part I reminded him that I had yesterday 
addressed to him a note protesting against the flagrant viola- 
tions of the French frontier committed two days ago by detach- 
ments of German troops. (French Yellow Book, No. 148.) 

Proclamation of United States ', February £8, 1918. — 
Soon after the United States entered the World War as a 
belligerent, it found problems arising from the use of 
aircraft and on February 28, 1918, a proclamation was 
issued requiring license from government authorities for 
any person flying over certain areas, and no private flying 
was to be permitted after 30 days from February 28. (40 
U.S.Stat., Pt. 2, 1753). The presumption would under 
such circumstances be that all aircraft of the registry of 
the United States would from that date be public air- 
craft and liable to be treated accordingly. 

Spaightfs opinion. — J. M. Spaight who has given much 
attention to laws relating to aircraft gives certain prac- 
tical arguments for refusal of entrance to belligerent 
aircraft within neutral jurisdiction. 

The pre-war argument for refusing to belligerent aircraft the 
right to circulate in neutral atmosphere, namely, that such a 
right must be accorded to both or neither of the belligerents, and 
that if accorded to both there must always be the danger of con- 
flicts above neutral soil, with consequent danger to life and prop- 
erty below, received a concrete confirmation in an occurrence of 
the war. In December, 1917, it was reported that an aerial com- 
bat took place over Swiss territory, and that as a result a good 
deal of damage was caused near Muttenz by the fall of bombs. 
Other combats also occurred over neutral territory — over Aarden- 
burg (Zeeland), for instance, in January, 1918; over Cadzand in 
April, 1918 ; and over Ameland in July, 1918. The fact that such 
incidents can occur is the best answer to the question which has 
been asked — Why should not the maritime rule of entry of neutral 
jurisdiction apply to aircraft? The answer is, in brief, that the 
circumstances are dissimilar, and that the practical objections to 
allowing entry of aircraft outweigh t any advantages that would 
result from applying the naval rule. The question has often been 
considered, and the general conclusion has been in favour of 
prohibition of entry. (Spaight, Air Power and War Rights, 2d 
ed., p. 422.) 



RULE OF SOJOURN 69 

Mr. Spaight also adds that exceptions to the prohibi- 
tion of entrance should not be made and were not 
made on account of force majeure, error in crossing a 
neutral frontier or other reason. This position was em- 
bodied in the rules drawn up by the Commission of 
Jurists at The Hague in 1923 in article 40 which forbade 
to belligerent military aircraft entrance to neutral 
jurisdiction. 

The 24-hour rule. — Gradually there evolved a rule that 
the same regulations should be applied by neutrals to 
the vessels of war of each belligerent sojourning in the 
neutral port. As vessels of war changed in character, 
there were varying proposals as to the length of time of 
permitted sojourn and of the interval between the sail- 
ing of vessels of different nationalities. Even during 
the World War distinctions among different types of 
vessels were for a time made. The Brazilian rules of 
August 4, 1914, contained the following provision: 

Art. 18th. If warships of two belligerents happen to be to- 
gether in a Brazilian port or harbor, an interval of twenty-four 
hours shall elapse between the sailing of one of them and the 
sailing of her enemy, if both are steamers. If the first to sail is 
a sailing vessel and the next being an enemy is a steamer, three 
days' advance will be given to the first belligerent ship. Their 
time of sailing will be counted from their respective arrivals, 
exceptions being made for the cases in which a prolongation of 
stay may be granted. A belligerent ship of war cannot leave a 
Brazilian port before the departure of a merchant ship under an 
enemy flag, but must respect the aforesaid provisions concern- 
ing the intervals of departure between steamers and sailing 
vessels. (1916 Naval War College, International Law Topics, 
P. 12.) 

The rule commonly called the 24-hour rule was gen- 
erally accepted. By this rule 24 hours was the limit of 
sojourn of a belligerent vessel of war in a neutral port 
under ordinary circumstances and 24 hours must elapse 
between the departure of vessels of war of opposing 
belligerents. The reason for the establishing of this 
period was that neither belligerent should be able to 
obtain an advantage over the other by entering neutral 



70 INDEPENDENT PHILIPPINE ISLANDS 

ports. It was thought 24 hours of sailing time would 
enable the leading vessel to reach a point where pursuit 
would be improbable. 

The sailing distance of a surface vessel in 24 hours 
would, however, be a relatively short journey for an air- 
craft. It was early seen that the 24-hour rule would not 
be practicable as between aircraft and of little use be- 
tween air and surface craft. The only safe rule for the 
neutral was soon discovered to be to prohibit entrance 
of aircraft and to intern any that transgressed this 
regulation. 

Resume. — While the final issue of the effort to adjust 
Philippine relations is still (1933) uncertain, the plan 
set forth in the Act of January 17, 1933, is one of the 
most definite thus far proposed and seriously considered. 
This plan would specially involve the viewing of the Act 
from three points of view, the attitude and consequences 
for (1) the United States; (2) the Philippine Islands; 
and (3) other states. 

The United States has in passing the Act of January 
17, 1933, over the President's veto, presumably set forth 
the policy which it is willing to pursue. This involves 
independence for the Islands after 10 years under speci- 
fied conditions. 

The Philippine Legislature has in failing to approve 
the conditions in the Act of January 17, 1933, indicated 
that the conditions are unsatisfactory and subsequently 
that certain amendments in the act were essential. 

Other states would be interested in any changes which 
might be made in the status of the Philippine Islands be- 
cause introducing new factors into the international poli- 
tics of the Pacific and Far East, where conditions are al- 
ready uncertain. While some form of neutralization 
might involve less serious problems for a time than would 
independence without such an agreement, there are still 
many problems even under neutralization if precedents 
can be made a basis of judgment. Xow the relations are 
between the United States and foreign powers. The ad- 



RESUME 71 

ditional relations which would follow, if Philippine inde- 
pendence is established, would be these which arise when 
a new state enters the family of nations. If neutraliza- 
tion of the Philippine Islands eventuates, not merely the 
Islands enter new international relations but all the 
parties to the neutralization enter new relations to one 
another as well as to nonparticipating states. 

Further, it may be questioned whether the Philippine 
Islands, on the frontier between the Eastern and Western 
Worlds, would feel assured of their independence with- 
out more definite sanctions than are ordinarily embodied 
in neutralization agreements. As states are not yet ac- 
customed to follow altruistic policies, it is doubtful 
whether there would be sufficient advantages eventually 
flowing from the neutralization of the Islands to warrant 
commitments which might involve sacrifices on the part 
of the states whose participation would be essential for 
effective neutralization. 

By the hypothesis of situation II the Philippine 
Islands have been granted their independence and this 
independence may or may not be accompanied by neu- 
tralization. If the Philippine Islands are not neutral- 
ized, all the rights and obligations of any state would 
reside in the Commonwealth of the Philippine Islands. 
As regards seaplanes, general practice seems to recognize 
that a great degree of risk is involved in their move- 
ments and that a neutral has a corresponding obliga- 
tion in controlling their movements. Internment has 
come to be regarded as the proper course of action on the 
part of a neutral. Other states may justly condition 
their action to a reasonable degree upon the effectiveness 
of the action of the neutral. 

If the Commonwealth of the Philippine Islands is 
neutralized, the respective states parties to the neutraliza- 
tion treaty will probably, judging from precedent, assume 
as little obligation as possible. The obligations of the 
Commonwealth of the Philippine Islands remain as 
would be the case without any neutralization treaty un- 
less the treaty specifically provides otherwise. 



72 INDEPENDENT PHILIPPINE ISLANDS 

SOLUTION 

1. In case the Philippine Islands obtain independence 
and are not neutralized : 

(a) The Philippine Government should intern the sea- 
plane. 

(b) The Yarriba may request assurances from the Phil- 
ippine Government to the effect that the seaplane has 
been or immediately will be interned. 

(c) The Namba may inquire whether the seaplane has 
been or immediately is to be interned and may govern its 
movements accordingly. 

(d) The TJsa has no legal concern with the matter. 

2. In case the Philippine Islands are neutralized: 

(a) The Philippine Government should intern the sea- 
plane. 

(b) If state Y is a party to the neutralization treaty, 
the Yamba may perform such services as rest upon that 
vessel under the treaty, but if state Y is not a party to 
the treaty, even though other states may be parties, the 
Yamba may request assurances from the Philippine Gov- 
ernment to the effect that the seaplane has been or im- 
mediately will be interned. 

(c) If state N is a party to the neutralization treaty, 
the Namba may perform such services as rest upon that 
vessel under the treaty, but if state N is not a party to 
the treaty, even though other states may be parties, the 
Namba may inquire whether the seaplane has been or 
immediately is to be interned and may govern its move- 
ments accordingly. 

(d) If the United States is, as may be inferred from 
the Act of January 17, 1933, a party to the treaty of 
neutralization, the TJsa may perform such services as 
rest upon that vessel under the treaty, but if the United 
States is not a party, even though other states may be 
parties, the TJsa has no legal concern with the matter. 



Situation III 

STRAITS IN PEACE AND WAR 

The relations of adjacent states C and D are strained. 
Both states are parties to the Pact of Paris of August 27, 
1928. A dispute in regard to the title of Narrow Island, 
20 miles in length, having one end iy 2 miles off the coast 
of state C and the other end 6 miles off the coast of state 
D, has continued since 1900. The strait between Narrow 
Island and the mainland widens to 12 miles in the middle 
and the navigable channel is within 2 miles of state C for 
3 miles. Each state in 1933 lands forces on the nearer 
end of the island and vessels of war of each are at the 
respective ends of the strait between the island and main- 
land. The strait is the more convenient and commonly 
used though not the sole waterway in the region. 

(1) Passage through the strait is refused by states C 
and D and their vessels of war threaten to maintain the 
closure. 

The Circa, a vessel of war of state C, 5 miles to sea- 
ward of Narrow Island, orders the Bora, a merchant 
vessel of state B, not to use its radio for any purpose 
while in the neighborhood. The Bara insists upon pro- 
ceeding through the strait and on the use of its radio. 

(a) What are the rights of states C and D? 

(b) What are the rights of other states? 

(c) What are the rights of the Bara, both outside and 
within the strait? 

(2) Later state D, maintaining that the action of 
state C already constitutes war, issues a declaration of 
war against state C. 

State C then gives notice that, in self-defense, it has 
mined its end of the strait. 

73 



74 STRAITS IN PEACE AND WAR 

(a) What are the rights of states C and D? 

(b) What are the rights of other states? 

(c) What would be the rights of the Bar a after the 
declaration ? 

solution 

1. In time of peace. — (a) States and D have no ex- 
ceptional rights of jurisdiction over a strait along their 
coasts connecting generally used water areas, though 
states C and D may take action necessary for self- 
defense. 

(b) Vessels of other states have the right of innocent 
passage through the strait but they are subject to reason- 
able regulations while within the territorial waters of 
C or D. 

(c) The Bora as a merchant vessel of state B is en- 
tirely exempt from the jurisdiction of state C while on 
the high sea but must conform to the regulations of 
states C and D when within the jurisdiction of those 
states. 

2. In time of war. — (a) States C and D have a right 
to regulate the use of their territorial waters and the 
waters within the immediate area of their operations. 

(b) Vessels of neutral states have the right of inno- 
cent passage through the strait though they are subject 
to reasonable regulations while within the territorial 
waters of C or D. In view of the fact that the strait 
is not the sole but the more convenient and commonly 
used waterway, the rights of C or D may as an extreme 
measure extend to closing of the strait. 

(c) After the declaration of war, the Bora as a mer- 
chant vessel of state B, is under obligation to observe 
the regulations of state C or D when within the terri- 
torial jurisdiction or the immediate area of the opera- 
tion of their forces. 

NOTES 

Strained relations. — The relations between neighbor- 
ing states are rarely such as to be without strain at 



PACT OF PAKIS, 19 28 75 

some point. The existence of such states as political 
entities is in itself an indication that the public well- 
being of each is viewed as somewhat different; other- 
wise they might unite. 

One of the most frequent bases of differences between 
adjacent states has been in regard to boundaries or ter- 
ritorial claims. Frequently boundary conventions have 
been drawn up without adequate knowledge of the 
geography of the area involved and subsequent investi- 
gations have shown that the distinctive characteristics 
do not exist. Even mountain ranges and rivers in some 
cases have not been found within the area mentioned in 
a convention or not at the supposed location. Claims and 
counterclaims have easily arisen as settlers move into 
such areas or valuable deposits of minerals are found 
in the region. Even the mere desire on the part of a 
state to extend its territorial jurisdiction over barren 
or unoccupied territory may give rise to contention. 
Ethnic questions have often brought states into antag- 
onism. 

Strained relations is a term which has been used to 
indicate an attitude of opposition of states to one an- 
other in any degree short of war. Such relations often 
lead to war but are not war and the existence of these 
relations does not bring into operation the law of war. 

The Pact of Paris. — The so-called " Pact of Paris " of 
August 27, 1928, or the Treaty for the Renunciation of 
War, grew out of the draft of a proposed bilateral pact 
of perpetual friendship between France and the United 
States which had been under consideration by the two 
powers from June, 1927. In the note of the American 
Secretary of State, December 28, 1927, advocating the 
extension of the treaty in such manner as to include the 
principal powers of the world, it was said that this 
would be " an impressive example to all other Nations 
of the world " in " condemning war and renouncing it 
as an instrument of national policy in favor of the pacific 

73500—34 6 



76 STRAITS IN PEACE AND WAR 

settlement of international disputes." The French reply 
of January 5, 1928, was that France was prepared to 
join the United States in renouncing " all war of aggres- 
sion " in favor of employment of pacific means. 

When in a note of January 11, 1928, the American 
Secretary of State raised question as to the proposal to 
limit the multilateral treaty to wars of aggression, the 
French Government replied that most of the principal 
powers were members of the League of Nations and 

They are already bound to one another by a Covenant placing 
them under reciprocal obligations, as well as by agreements such 
as those signed at Locarno in October 1925, or by international 
conventions relative to guaranties of neutrality, all of which en- 
gagements impose upon them duties which they can not 
contravene. 

In particular, Your Excellency knows that all states members of 
the League of Nations represented at Geneva in the month of 
September last, adopted, in a joint resolution tending to the con- 
demnation of war, certain principles based on the respect for the 
reciprocal rights and duties of each. In that resolution the 
powers were led to specify that the action to be condemned as an 
international crime is aggressive war and that all peaceful means 
must be employed for the settlement of differences, of any nature 
whatsoever, which might arise between the several states. 
(Treaty for Renunciation of War. Text of the Treaty, Notes 
Exchanged, Instruments of Ratification, etc. U.S. Government 
Publication No. 468, p. 20.) 

This note went even further and, proposing sanctions, 
said : 

The Government of the Republic has always, under all circum- 
stances, very clearly and without mental reservation declared its 
readiness to join in any declaration tending to denounce war 
as a crime and to set up international sanctions susceptible of 
preventing or repressing it. (Ibid., p. 21.) 

It was clearly stated that the Pact in no way " Either 
violates the specific obligations imposed by the Covenant 
or conflicts with the fundamental idea and purpose of 
the League of Nations. * * * If, however, such a 
declaration were accompanied by definitions of the word 
' aggressor ' and by exceptions and qualifications stipu- 



PACT OF PAEIS, 19 28 77 

lating when nations would be justified in going to war, 
its effect would be very greatly weakened and its positive 
value as a guaranty of peace virtually destroyed." 

There was much correspondence upon the objects which 
the negotiators had in view, some of which were not sus- 
ceptible of consistent interpretation with propositions 
made from time to time by the same writers. It was, 
however, clearly stated in the preliminary correspondence 
between the United States and France that the right of 
defense was not impaired. The condemnation of war 
as an instrument of national policy is understood " in 
other words as a means of carrying out their own spon- 
taneous independent policy." 

In transmitting its adherence to the Pact of Paris, the 
Union of Soviet Socialist Republics, M. Litvinoff, called 
attention to the strict interpretation of certain terms in 
the Pact. 

In considering the text of the pact the Soviet Government 
deems it necessary to point to the lack of plainness and clear- 
ness in article 1 of the very formula that forbids war, which is 
open to divergent and arbitrary interpretations. For its part, 
the Soviet Government believes that any international war must 
be forbidden either as an instrument of what is styled " na- 
tional policy" or as a means to promote other ends (for instance 
the repression of movements for liberating peoples, etc.). In the 
opinion of the Soviet Government, it is necessary to forbid not 
only wars in a juridical and formal construction of the word 
(that is to say, assuming a "declaration of war," etc.) but also 
military actions such as, for instance, intervention, blockade, 
military occupation of foreign territories, of foreign ports, etc. 
The history of these last few years records quite a number of 
military actions of that kind which have brought upon peoples 
awful calamities. (Ibid., p. 269.) 

The notes of the Union of Soviet Socialist Republics also 
referred to the British statement that there were 

Certain regions of the world the welfare and integrity of which 
constitute a special and vital interest for our peace and safety. 
His Majesty's Government have been at pains to make it clear 
in the past that interference with these regions cannot be suf- 
fered. Their protection against attack is to the British Empire 



78 STRAITS IN PEACE AND WAR 

a measure of self-defence. It must be clearly understood that 
His Majesty's Government in Great Britain accept the new 
treaty upon the distinct understanding that it does not prejudice 
their freedom of action in this respect. The Government of the 
United States have comparable interests any disregard of which 
by a foreign Power they have declared that they would regard 
as an unfriendly act. His Majesty's Government believe, there- 
fore, that in defining their position they are expressing the 
intention and meaning of the United States Government. (Ibid., 
p. 45.) 

In regard to this position, the Union of Soviet Social- 
ist Republics said, 

If they are regions forming part of the British Empire or its 
Dominions, they are already all included in the pact, and the 
case of any aggression against them is provided for in the pact 
so that the reservation of the British Government in regard to 
them might seem to be at least superfluous. But if other regions 
are meant, the signatories of the pact have a right to know ex- 
actly where the freedom of action of the British Government 
begins and where it ends. 

But the British Government reserves to itself full freedom of 
action not only in cases of armed aggression against those re- 
gions but even in cases of any act whatsoever of enmity or " of 
interference " which would justify the British Government in 
opening hostilities. Recognition of such a right for that Gov- 
ernment would amount to justifying war and and might be taken 
as a contagious example to other signatories of the pact who, 
on the assumption that they have the same right, would also 
claim the same liberty with regard to other regions, and the 
result would be that there would probably be no place left on 
earth where the pact could be put in operation. Indeed, the 
restriction made by the British Government carries an invitation 
to another signatory of the pact to withdraw from its operation 
still other regions. The Soviet Government can not help regard- 
ing this reservation as an attempt to use the pact itself as an 
instrument of imperialistic policy. (Ibid., p. 271.) 

Self-defense and treaties. — It scarcely needs argument 
to establish the fact that states do not negotiate a treaty 
to the end that their position in the world may be less 
favorable than when they were not parties to the treaty. 
The aim of many treaties according to their preambles 
is the maintenance of peace, the establishing of order and 



MARITIME JURISDICTION 79 

justice, or mutual aid of some sort. While there are 
sometimes professions of aiming to promote the general 
good, it is usually in a direction closely related to the 
national good. This is particularly the case where trea- 
ties require for their operation the approval of some 
elective, legislative body dependent upon majority vote. 
Sometimes such a body does approve a treaty that seems 
innocuous if it has a fair popular support. The same 
attitude is sometimes taken upon treaties which may do 
no harm, but possibly may be of advantage. 

As self-defense is regarded as a fundamental right of 
a state, this right would be understood in no case to be 
abrogated without express provision. Certain prerequi- 
sites to the legitimate exercise of national forces for self- 
defense are often agreed upon such as conciliation, arbi- 
tration, etc. 

Maritime jurisdiction in general. — In the Interna- 
tional Law Situations of the Naval War College of 1928 
(pp. 1-39), the general subject of maritime jurisdiction 
and the development of the law relating to maritime ju- 
risdiction received quite full attention. This treatment 
showed that there had been many differences among states 
both in practice and theory and that there had been wide 
divergences in the opinions of writers. Controversies in 
regard to the control of the sea had been common for 
many centuries and claims to exclusive control of oceans 
had often been made. While from the days of Bynker- 
shoek and the treaties of the early eighteenth century 
there was a tendency to adopt the cannon shot, at that 
time about 3 miles, as the limit of coast jurisdiction in 
adjacent waters, this was not uniformly accepted. The 
opinions of publicists, even in America, varied from time 
to time. Chancellor Kent considered that it would not 
be an unreasonable assumption for the United States to 
claim maritime jurisdiction " from quite distant head- 
lines, as, for instance, from Cape Ann to Cape Cod, and 
from Nantucket to Montauk Point, ard from that point 
to the capes of the Delaware, and from the south cape of 



80 STKAITS IN PEACE AND WAR 

Florida to the Mississippi. It is certain that our Govern- 
ment would, be disposed to view with some uneasiness 
and sensibility, in the case of war between other mari- 
time powers, the use of the waters of our coasts, far be- 
yond the reach of cannon shot, as cruising ground for 
belligerent purposes." (Commentaries on American 
Law, 14th ed., p. 26.) 

There had been a considerable body of opinion in favor 
of a general acceptance of a 6-mile limit before the World 
War. Since that time there has been a drift toward ac- 
ceptance of a 3-mile limit as a minimum but recog- 
nizing that there were many claims to wider jurisdiction. 
The United States Government has usually maintained 
the 3-mile limit in recent years, though expressed willing- 
ness to consider a wider zone. 

It now is settled in the United States and recognized elsewhere 
that the territory subject to its jurisdiction includes the land 
areas under its dominion and control, the ports, harbors, bays, 
and other inclosed arms of the sea along its coast, and a marginal 
belt of the sea extending from the coast line outward a marine 
league, or 3 geographic miles. (Cunarcl S.8. Co. v. Mellon (1923), 
262 U.S. 100.) 

The 3-mile limit was also embodied in the provisions 
of the numerous treaties which the United States negoti- 
ated from early 1924 in regard to the smuggling of 
intoxicating liquors. 

Maritime jurisdiction; customs. — On June 13, 1929, 
the schooner Dorothy M. Smart when 11% miles off the 
coast of Nova Scotia was seized by a customs officer. 
The case was appealed and finally came to the Judicial 
Committee of the Privy Council which gave judgment, 
July 28, 1932. In this judgment it was said, 

The validity of the seizure, which was effected in pursuance 
of powers conferred by the Customs Act of Canada, Revised 
Statutes of Canada, 1927, c. 42, as amended by 18 and 19 Geo. 
V., c. 16, is challenged in the present proceedings on the broad 
ground that the Parliament of the Dominion in conferring the 
powers in question exceeded its legislative competence. 



CUSTOMS JURISDICTION 81 

The enactments impugned are contained in sections 151 and 207 
of the statute as amended. 

Section 151 provides as follows : 

"(1) If any vessel is hovering in territorial waters of Canada 
any officer may go on board such vessel and examine her cargo 
and may also examine the master or person in command upon 
oath touching the cargo and voyage and bring the vessel into 
port. . . . 

"(7) For the purposes of this section and section two hundred 
and seven of this Act ' Territorial waters of Canada ' shall mean 
the waters forming part of the territory of the Dominion of 
Canada and the waters adjacent to the Dominion within three 
marine miles thereof in case of any vessel and within twelve 
marine miles thereof in the case of any vessel registered in 
Canada." 

Section 207 enacts as follows : 

"(1) If upon the examination of any officer of the cargo of any 
vessel hovering in territorial waters of Canada any dutiable goods 
or any goods the importation of which into Canada is prohibited 
are found on board such vessel with her . . . cargo shall be 
seized and forfeited. . . ." 

The question accordingly is whether it was within the power 
of the Dominion Parliament to pass such legislation purporting 
to operate to a distance of 12 miles from the coast of Canada. 
To test this question the respondent as plaintiff below initiated 
proceedings in the Supreme Court of Nova Scotia against the 
customs officer who had seized his vessel and cargo, claiming 
their return and damages for their detention on the ground of 
the illegality of the seizure. The trial Judge upheld the validity 
of the legislation and consequently of the seizure, and his deci- 
sion was affirmed by five Judges of the Supreme Court of Nova 
Scotia in banco. On an appeal being taken to the Supreme Court 
of Canada this judgment was reversed by a majority consisting 
of Mr. Justice Duff, Mr. Justice Rinfret, and Mr. Justice Lamout — ■ 
Mr. Justice Newcombe and Mr. Justice Cannon dissenting. The 
matter now comes before their Lordships on the defendant's 
appeal. 

It may be accepted as a general principle that States can 
legislate effectively only for their own territories. To what dis- 
tance seaward the territory of a State is to be taken as extend- 
ing is a question of international law upon which their Lord- 
ships do not deem it necessary or proper to pronounce. But what- 
ever be the limits of territorial waters in the international sense, 
it has long been recognized that for certain purposes, notably 
those of police, revenue, public health and fisheries, a State may 



82 STRAITS IN PEACE AND WAR 

enact laws affecting the seas surrounding its coasts to a distance 
seaward which exceeds the ordinary limits of its territory. * * * 

In the present case, however, there is no question of inter- 
national law involved, for legislation of the kind here challenged 
is recognized as legitimate by international law, and in any event 
the provision impugned has no application to foreign vessels. The 
sole question is whether the Imperial Parliament, in conferring 
upon Canada, as it admittedly has done, full power to enact 
customs legislation, bestowed or withheld the power to enact the 
provisions now challenged. No question of any infraction of inter- 
national law arises. * * * 

So familiar indeed are such provisions in the history of Brit- 
ish customs legislation that the series of measures embodying 
them have come to be known compendiously as the " Hovering 
Acts." Although these Acts have now all been repealed, the 
Customs Consolidation Act of 1876, by section 179, authorized the 
forfeiture of any ship belonging wholly or in part to British 
subjects, or having half the persons on board subjects of her 
Majesty, if found with prohibited goods on board within three 
leagues of the coast of the United Kingdom. In the case of 
other vessels not British the limit is fixed at one league from the 
Coast. (Croft v. DunpMj, July 28, 1932.) 

Straits. — The word " strait " has sometimes been used 
to describe an estuary separating two land areas and 
open to the high sea only at one end. The strait here 
under consideration is between an island and coasts of 
states C and D and is a waterway navigable and open 
to the sea at both ends. The bodies of water sometimes 
called straits and opening to the sea at one end only have 
usually been subjected to a greater degree of control by 
the adjacent state or states than have straits connecting 
seas. The demarcation of the limits of jurisdiction may 
be in the competence of the adjacent states and the na* 
ture of the exercise of the jurisdiction may be similarly 
determined. 

An example of this latter type is found in the treaty 
of February 28/16, 1825, between Great Britain and 
Russia in articles II and III. 

II. In order to prevent the Right of navigating and fishing 
exercised upon the Ocean by the Subjects of The High Contract- 
ing Parties, from becoming the pretex for an illicit Commerce, 



USE OF WORD STRAIT 83 

it is agreed that the Subjects of His Britannick Majesty shall 
not land at any place where there may be a Russian Establish- 
ment, without the permission of the Governor or Commandant; 
and, on the other hand, that Russian Subjects shall not land, 
without permission, at any British Establishment on the North- 
west Coast. 

III. The line of demarcation between the Possessions of the 
High Contracting Parties, upon the Coast of the Continent, and 
the Islands of America to the North-West, shall be drawn in the 
manner following : — 

Commencing from the Southernmost Point of the Island called 
Prince of Wales Island, which Point lies in the parallel of 54 
degrees 40 minutes North latitude, and between the 131st and 133d 
degree of West longitude (Meridian of Greenwich), the said line 
shall ascend to the North along the Channel called Portland 
Channel, as far as the Point of the Continent where it strikes the 
56th degree of North latitude ; from this last-mentioned Point, the 
line of demarcation shall follow the summit of the mountains 
situated parallel to the Coast, as far as the point of intersection 
of the 141st degree of West longitude (of the same Meridian) ; 
and, finally, from the said Meridian Line of the 141st degree, in 
its prolongation as far as the Frozen Ocean, shall form the 
limit between the Russian and British Possessions on the Conti- 
nent of America to the North-West. (12 British and Foreign 
State Papers, p. 38.) 

This treaty subsequently became of importance to the 
United States as successor to Russia in this region. 

Another boundary involving a strip of water running 
inland between two states was on the northwest frontier 
of the United States and in the treaty of June 15, 1846, 
it was stated, 

Article 1. From the point on the 49th parallel of north lati- 
tude, where the boundary laid down in existing treaties and con- 
ventions between the United States and Great Britain termi- 
nates, the line of boundary between the territories of the United 
States and those of her Britannic Majesty shall be continued 
westward along the said 49th parallel of north latitude to the 
middle of the channel which separates the continent from Van- 
couver's Island, and thence southerly through the middle of the 
said channel, and of Fuca's Straits, to the Pacific Ocean; — 
Provided, however, That the navigation of the whole of the said 
channel and straits, south of the 49th parallel of north latitude, 



84 STRAITS IN PEACE AND WAR 

shall remain free and open to both parties. (9 U.S. Stat. p. 
869.) 

The Fuca's Straits here mentioned at the entrance near 
Bonilla Point are somewhat more than 10 miles wide 
and at points within much wider, but a boundary cover- 
ing these waters was accepted by the United States and 
Great Britain in 1873 in accord with an arbitral award 
of the German Emperor. 

Jurisdiction over straits. — During the latter half of 
the nineteenth century there was a considerable drift 
toward widening the generally accepted area of juris- 
diction of the sea. This tendency would also extend 
to jurisdiction over straits. After much discussion the 
Institute of International Law at its sessions in 1891, 
1892, and 1894, gave attention to the question of defini- 
tion and status of the territorial sea and in 1894 adopted 
the following: 

Article 10. The provisions of the preceding articles apply to 
straits whose breadth does not exceed twelve* miles, subject to 
the following modifications and distinctions : 

1. Straits whose shores belong to different States form part 
of the territorial sea of the littoral States, which will exercise 
their sovereignty to the middle line. 

2. Straits whose shores belong to the same State and which 
are indispensable to maritime communication between two or 
more States other than the littoral State always form part of 
the territorial sea of such State, whatever the distance between 
the coasts. 

3. Straits which serve as a passage from one open sea to 
another open sea can never be closed. 

Article! 11. The regime of straits actually governed by special 
conventions or usages remains reserved. (Resolutions of the In- 
stitute of International Law, Carnegie Endowment for Interna- 
tional Peace, p. 115.) 

As the 6-mile limit for jurisdiction over the territorial 
sea was not generally accepted, the tendency has been to 
accept the principles of article 10 with the substitution 
of 6 in place of 12 miles. 

Black Sea Straits. — Since late in the eighteenth cen- 
tury the passage from the Mediterranean to the Black 



BOSPHORUS AND DARDANELLES 85 

Sea has become an international question of capital im- 
portance. During the years when the whole coast line 
of the Black Sea and its entrances was under the juris- 
diction of Turkey, there was little discussion of inter- 
national rights. When Russia by treaty in 1774 ob- 
tained rights of passage through the Dardanelles and 
Bosphorus for Russian vessels of commerce, new prob- 
lems arose and the " Straits question " as it came to be 
called became a European problem. During the Napole- 
onic Wars the passage of vessels of war gave rise to con- 
troversy and during the nineteenth century the degree 
of control of the Straits varied with the national rela- 
tions. The United States did not formally admit the 
right to close these waters. Questions arose in regard to 
the passage of the Russian volunteer fleet vessels, par- 
ticularly the Smolensk and Peterbv/rg, during the Russo- 
Japanese War, 1904-05. (1906 Naval War College, In- 
ternational Law Topics, p. 119; 1907 Naval War College, 
International Law Situations, pp. 48-50; 1912 Ibid., p. 
171.) Other problems arose when the Breslau and 
Goeben, German cruisers, sought refuge from the allied 
forces by entering the Straits. 

In the Treaty of Sevres, August 10, 1921, between 
the Principal Allied Powers and Turkey, provisions 
were made in section II of part III for navigation and 
control of the straits. Article 37 stated that, 

The navigation of the Straits, including the Dardanelles, the 
Sea of Marmora and the Bosphorus, shall in future be open, 
both in peace and war, to every vessel of commerce or of war 
and to military and commercial aircraft, without distinction 
of flag. 

These waters shall not be subject to blockade, nor shall any 
belligerent right be exercised nor any act of hostility be com- 
mitted within them, unless in pursuance of a decision of the 
Council of the League of Nations. 

Article 38 and following articles delegated control to 
a " commission of the straits " and outlined the method 
of control. This Treaty of Sevres gave to Greece a 



86 STRAITS IN PEACE AND WAR 

measure of control of the European shore of the Dar- 
danelles and in this and other respects was unacceptable 
to Turkey and after further negotiations, Turkey taking 
advantage of the troubles of the Allied Powers, was 
able to make more favorable terms at the Lausanne Con- 
ference in 1923. In the Convention relating to the Re- 
gime of the Straits signed at Lausanne, July 24, 1923, 
Turkey obtained modification of many of the detailed 
restrictions of the unratified Treaty of Sevres as well 
as control of the European coast of the Dardanelles, 
though " The principle of freedom of transit and of 
navigation by sea and by air, in time of peace as in 
time of war, in the Strait of the Dardanelles, the Sea 
of Marmora and the Bosphorus " is recognized in article 
23 of the treaty which the convention elaborates. 

Straits of Magellan. — Spain from 1520 held authority 
over the southern portion of South America and juris- 
diction over the Straits of Magellan. Spain attempted 
to fortify the strait and for a time to close it to naviga- 
tion. The establishing of the independence of the Argen- 
tine Republic and of Chile introduced new problems re- 
lating to the jurisdiction and navigation of these straits. 

Since the last quarter of the nineteenth century the 
right of states adjacent to the Straits of Magellan to close 
that strait has ordinarily been denied. The Straits of 
Magellan afford a much more convenient and safer route 
for vessels passing from the southern Atlantic to the 
southern Pacific Ocean than the route by open sea. 
These straits for about 300 miles furnish an inland water- 
way from 2 to more than 10 miles in width. Part of this 
waterway is wholly within the jurisdictional area claimed 
by Chile and part is between Chile and the Argentine 
Republic. There has been much controversy between the 
two states over their respective territorial limits. 

By the treaty between the Argentine Republic and 
Chile signed July 23, 1881, it was provided — 

Article 5. The Strait of Magellan is neutralized, and free navi- 
gation thereon insured to the flags of all nations. With a view 



STRAIT^ OF MAGELLAN 87 

to guaranteeing this freedom and neutrality, no fortification or 
military defenses will be raised that may clash with that object. 
(72 British and Foreign State Papers, p. 1103.) 

Decrees of Chile, 1911^. — The status of Chilean terri- 
torial waters and the Straits of Magellan so far as Chile 
was concerned was defined in two decrees in 1914. 

No. 1857. 

Ministry of Foreign Relations, 

Santiago, November 5, 1914. 

Considering that, although it is true that the laws of the Re- 
public have determined the limits of the territorial sea and of the 
national domain, and the distance to which extend the rights of 
police in all matters concerning the security of the country and 
the observance of customs laws, they have not fixed the maritime 
zone in reference to the safeguarding of the rights and the ac- 
complishment of the duties relative to the neutrality declared by 
the Government in case of international conflicts; and that it is 
proper for sovereign states to fix this zone. 

It is decreed: 

The contiguous sea, up to a distance of 3 marine miles counted 
from the low-water line is considered as the jurisdictional or 
neutral sea on the coasts of the Republic for the safeguarding of 
the rights and the accomplishment of the duties relative to the 
neutrality declared by the Government in case of international 
conflicts. 

Let it be noted, communicated, published, and inserted in the 
Bulletin of the Laws and Decrees of the Government. 

Barros Ltjco. 
Manuel Salinas. 
(1916 Naval War College, International Law Topics, p. 19.) 

No. 1986. 

Considering that the Strait of Magellan as well as the canals 
of the southern region lie within the international limits of Chile, 
and consequently form part of the territory of the Republic, 

It is decreed: 

In reference to the neutrality established in the decree No. 1857 
of November 5 last of the ministry of foreign affairs, the interior 
waters of the Strait of Magellan and the canals of the southern 
region, even in the parts which are distant more than 3 miles from 
either bank, should be considered as forming part of the juris- 
dictional or neutral sea. 



88 STRAITS IN PEACE .AND WAR 

Let it be noted, communicated, published, and inserted in the 
Bulletin of the Laws and Decrees of the Government. 

Barros Luco. 

Manuel Salinas. 
(Ibid, p. 21.) 

League of Nations C ommiittee and straits. — On Sep- 
tember 22, 1924, ihR Assembly of the League of Na- 
tions requested the Council to convene a committee of 
experts to consult and report to the Council upon what 
questions were sufficiently ripe for consideration with 
view to a progressive codification of international law. 
Among subjects regarded as fitted for an international 
conference was territorial waters. This committee of ex- 
perts adopted a plan for a questionnaire to be submitted 
to the various states with the purpose of determining 
what should be the course of their labors. From this 
questionnaire matters relating to private international 
law, the law of war and of neutrality were in general ex- 
cluded. In the report of the subcommittee — Messrs. 
Schiicking, de Magalhaes, and Wickersham — having to 
do with territorial waters, Mr. Schiicking's first draft 
provided in article 6 : 

The regime of straits at present subject to special conventions 
is reserved. 

In Straits of which both shores belong to the same State, the 
sea shall be territorial, even jf the distance between the shores 
exceeds 12 miles, provided that that distance is not exceeded at 
either entrance to the strait. 

Straits not exceeding 12 miles in width whose shores belong 
to different States shall form part of the territorial sea as far 
as the middle line. (20 Amer. Journ. International Law, Sup- 
plement [1926], p. 117.) 

This was not approved by the subcommittee. In com- 
menting on this rule, Dr. Schiicking remarked : 

The legal view most generally favoured fixes as the limit the 
middle of the strait. 

A rule of law not without practical importance which has been 
established as regards rights in straits serving as a passage to 
open seas is that such a strait may never be closed. This rule 



LEAGUE OF NATIONS CODIFICATION" 89 

is in accordance with the idea that a riparian State is not 
entitled in time of war completely to close its territorial sea. 
(Ibid., p. 89.) 

Mr. Wickersham in referring to Dr. Schucking's atti- 
tude on straits said, 

If the strait be more than six miles in width and the land 
on either side is owned by a different State, the general rule 
is that the boundary line runs through the middle of the stream. 
If, on the other hand, the stream be less than six miles in width, 
the principle of thalweg would ordinarily apply, although the 
rule is not uniform (see Hall, pp. 195-6; Lawrence, 140; Crocker, 
281). If the shores of a strait on both sides are owned by one 
nation but the strait connects waters the opposite banks of which 
are owned by different Powers, the strait constitutes a maritime 
highway which may not be closed by the proprietor State (Ray- 
neval, Institutions du Droit de la Nature, I, p. 298), e.g. the 
Baltic, the Dardanelles. (Ibid., p. 140.) 

The draft convention as amended by Dr. Schiicking 
in consequence of discussion by the committee of experts 
contained the following article in regard to straits : 

Article 6. The regime of straits at present subject to special 
conventions is reserved. In straits of which both shores belong 
to the same State, the sea shall be territorial, even if the distance 
between the shores exceeds ten miles, provided that that distance 
is not exceeded at either entrance to the strait. 

Straits not exceeding ten miles in width whose shores belong 
to different States shall form part of the territorial sea as far as 
the middle line. (Ibid., p. 142.) 

Comments on proposed article 6. — In the preliminary 
replies there was a wide diversity of opinion among states 
upon the amended article 6 of the League of Nations 
Committee which proposed a 10-mile limit for straits. 

Germany commented to the following effect : 

Ad Article 6. — If the three-nautical-mile zone is taken as a 
basis, the legal status of straits should depend solely on whether 
their width at the entrance is over or under six nautical miles, 
as the case may be. (League of Nations. C. 196. M. 70. 1927 
V. p. 131.) 

International Law Association, 1926. — The Interna- 
tional Law Association which had considered the ques- 



90 STRAITS IN PEACE AND WAR 

tion and prepared a draft convention on the law of mari- 
time jurisdiction in time of peace embodied in this 
convention in 1926 the following articles : 

IV. Straits and Natural Channels Connecting Two Seas 

ARTICLE 14 

In the case of straits and natural channels which connect two 
or more seas and which divide two or more States, the limit of 
the territorial jurisdiction of each State shall be the middle line 
of the strait or channel which divides them, when the strait or 
channel is six miles or less in width. 

ARTICLE 15 

Where a strait or channel is more than six miles in width, 
the right of territorial jurisdiction of the littoral States extends 
to three miles from their respective coasts; beyond this limit its 
status is the same as on the high sea. 

ARTICLE 1 6 

When the power to make transit regulations is not vested in 
an international body, the regulations enacted by the littoral 
States shall, as far as possible, be uniform and such as not to 
interfere with freedom of navigation. (Report, 34th Conference, 
1920, p. 101.) 

Japanese Branch of the International Law Associa- 
tion. — The Japanese Branch of the International Law 
Association in 1926 accepted as the limit of the marginal 
sea the 3-mile line from the low-water mark and the 10- 
mile line for mouths of bays wholly bounded by one 
State. The draft prepared by the Japanese branch also 
had an article relating to straits as follows: 

Article 3. If, in the case of straits the coasts of which belong 
to the same State, the distance between the shores of each en- 
trance does not exceed ten marine miles, the littoral waters 
extend outwards at right angles from the straight lines respec- 
tively drawn across each entrance of the straits at the first 
points nearest the open sea where the width does not exceed ten 
marine miles. 

In the case of straits the coasts of which belong to two or more 
different States, the littoral waters follow the trend of the coasts 
according to the general rule; but in case the distance between 



CLOSUEE OF PORTS 91 

the two shores does not amount to six marine miles, the dividing 
line between the respective littoral waters shall in principle be 
the middle line measured from the two coasts. (25 Revue de 
Droit International et Diplomatie [Tokio], July, 1926.) 

Closure of ports. — Certain aspects of the closure of 
ports were considered in the Naval War College Inter- 
national Law Situations, 1930, under situation II. It 
was shown that ports were for various reasons closed 
for periods in time of peace and by effective blockade in 
time of war. 

In May 1910, instructions had been issued in regard 
to interference with shipping off the coast of Nicaragua : 

11 ' The Secretary of State then held that if the announced block- 
ade or investment was effectively maintained, and the require- 
ments of international law, including warning to approaching 
vessels, were observed, the United States Government would not 
be disposed to prevent its enforcement, but reserved all rights in 
respect to the validity of any proceedings against vessels as 
prizes of war. In the present instance it should, however, be ob- 
served that a vessel which, by deceiving the authorities at a port 
of the United States, sailed therefrom in the guise of a mer- 
chantman, but had in reality been destined for use as a war vessel, 
by such act has forfeited full belligerent rights, such as the right 
of search on the high seas and of blockade.' Also the letter of the 
Secretary of State to the Secretary of the Navy as of June 3, 
regarding a proposed instruction to Commander Gilmer, which 
instruction was also given: 'This Government denies the right, 
of either faction to seize American-owned vessels or property 
without consent of and recompense to the owners. In such cases, 
if you can ascertain ownership, you will instantly act in ac- 
cordance with this policy.' And the letter from the Secretary 
of the Navy to the Secretary of State of June 7, containing the 
notifications issued by Commander Gilmer under date of June 
3 : ' I received a communication to-day from Gen. Rivas, com- 
manding Madriz forces, Bluefields Bluff, stating that certain 
vessels have been used by Estrada forces and that he would not 
permit vessels of Bluefield Steamship Co., Atlantic Navigation 
Co., Bellanger Co., and Cukra Co., all American companies, to 
pass through the waters held by Madriz forces. I informed him 
that Estrada had the right to use these vessels with consent of 
owners if properly remunerated, but while so used Rivas had 
73500—34 7 



92 STRAITS IN PEACE AND WAR 

the right to capture or destroy them ; but when in the company's 
legitimate trade I would permit no interference with them. I 
have ordered guard American marines or sailors on vessels pass- 
ing Bluff when in legitimate trade. Have informed Rivas that 
if they were fired upon I would return the fire and would seize 
the Venus and San Jacinto, and that I would permit no inter- 
ference with shipping of American firms in legitimate business.' " 
(1910 U.S. Foreign Relations, p, 756.) 

It has been admitted that a state may act for its own 
defense by closing its ports in whole or in part. 

Closure of straits. — There may be a difference of 
opinion as to closing a strait which is a highway for com- 
merce. If a strait is the sole highway for commerce be- 
tween two open seas, it has been generally maintained 
since the middle of the nineteenth century that it may not 
be closed as this would constitute a denial of the freedom 
of the sea. This position does not necessarily deny to a 
state adjacent to the strait the right to take within its 
own jurisdiction measures essential to a reasonable de- 
gree of protection for itself. These measures should,, 
however, be restricted both in time and in character to 
action that would constitute the minimum degree of 
interference with innocent passage. 

The Declaration of France and Great Britain, April 
8, 1904, respecting Egypt and Morocco in article YII 
provides for the free passage of the Straits of Gibraltar 
as follows : 

In order to secure the free passage of the Straits of Gibraltar, 
the erection of any fortifications or strategic works on that por- 
tion of the coast of Morocco comprised between, but not includ- 
ing, Melilla and the heights which command the right bank of 
the River Sebon. 

This condition does not, however, apply to the places at present 
in the occupation of Spain on the Moorish coast of the Mediter- 
ranean. (32 Martens, Traites Generates, Noveau Recueille, 2d 
ser., 1905, pp. 15, 20.) 

Declaration of wur. — From early Biblical times there 
was usually a considerable degree of formality in insti- 
tuting war measures. Formal announcements and re- 



DECLARATION OF WAR 93 

plies were common. The Greeks and Romans made 
declarations and at times prescribed a period between 
declaration and active hostilities during which satisfac- 
tion might be made. The sending of heralds, the issuing 
of ultimata, periods of grace, challenges, etc., in vary- 
ing forms continued to be used till the late seventeenth 
century. 

With extension of overseas territories and the develop- 
ment of maritime activity, practice became less strict and 
embargoes, letters of marque and reprisal indicated 
changed attitudes. During the eighteenth and nine- 
teenth centuries the greater number of wars were car- 
ried on and concluded without declaration. Many com- 
plications and uncertainties arose in consequence of this 
change and the statement of the Court in the case of the 
Buena Ventura set forth the situation as of 1899 : 

The practice of a formal proclamation before recognizing an 
existing war and capturing enemy's property has fallen into dis- 
use in modern times, and actual hostilities may determine the 
date of the commencement of war, though no proclamation may 
have been issued, no declaration made, and no action of the 
legislative branch of the government had. (87 Fed. 927; 175 
U.S. 384.) 

The uncertainty of the time at which war commenced 
gave rise to many difficulties as the relations of belliger- 
ents and of neutrals changed. Intricate legal problems 
arose as to rights of capture, transfer of titles, and other 
relations common in modern relations among states and 
among their citizens. Accusations of treachery and 
many forms of misconduct had arisen in recent years 
because of resort to war without previous declaration. 

In 1906 the Institute of International Law had after 
full discussion adopted the following resolutions : 

1. It is in accordance with the requirements of international 
law, and with the spirit of fairness which nations owe to one 
another in their mutual relations, as well as in the common in- 
terest of all States, that hostilities must not commence without 
previous and explicit warning. 



94 STRAITS IN PEACE AND WAR 

2. This warning may take place either under the form of a 
declaration of war pure and simple, or under that of an ultima- 
tum, duly notified to the adversary by the State about to com- 
mence war. 

3. Hostilities shall not commence before the expiration of a 
delay sufficient to make it certain that the rule of previous and 
explicit notice cannot be considered as evaded. (Scott, Resolu- 
tions of the Institute of International Law, p. 164.) 

At the Second Hague Peace Conference, 1907, a some- 
what more satisfactory form was adopted which gave a 
sanction to the requirement of a declaration by exempt- 
ing neutrals from liability unless the state of war should 
be made known. Hague Convention III relative to the 
Commencement of Hostilities took the following form: 

Article 1. The contracting powers recognize that hostilities 
between themselves must not commence without previous and 
explicit warning, in the form either of a reasoned declaration of 
war or of an ultimatum with conditional declaration of war. 

This convention was generally ratified. 

Reasons for declaring war. — The first article of Hague 
Convention III, Commencement of Hostilities, had pro- 
vided for a declaration with reasons and reasons w T ere 
given in the more than 50 declarations issued in the 
World War. These reasons included acts of aggression, 
cooperation with enemy, alliance with enemy, violation 
of treaties, subversive intrigues, violation of neutral 
rights, common cause with democratic nations, fulfill- 
ment of national aspirations, defense of navigation of 
the seas, and many others both concrete and abstract. 

Brazilian rules, 1933. — Subsequent to the submission of 
this situation for consideration at the Naval War College, 
the Paraguayan Kepublic on May 10, 1933, declared a 
state of war with Bolivia. Argentina, May 13, 1933; 
Brazil, May 23, 1933 ; Chile, May 13, 1933 ; Peru, May 13, 
1933; and Uruguay, May 12, 1933, declared neutrality. 
Brazil has usually issued detailed rules in regard to neu- 
trality. Owing to the geographical situation of Bolivia 
and Paraguay as states with no seacoast but with river 
connections to the sea through neutral states, questions as 



OPENING OF HOSTILITIES 95 

to communication and trade became important, Brazil 
aimed to maintain its neutrality by specific articles in its 
rules of neutrality such as — 

Article 3. The agents of the Federal Government or of the 
States of Brazil are forbidden to export or to favor directly or 
indirectly the remittance of war material to either of the 
belligerents. 

Article 4. The provision of the preceding article does not pre- 
vent the free transit, river or land, assured by treaties in effect 
between Brazil and either of the belligerents. 

Article 5. It is forbidden to the belligerents to make on the 
land, river, or maritime territory of the United States of Brazil, 
a base of war operations or to practice acts which may constitute 
a violation of Brazilian neutrality. 

Opening of hostilities. — The representatives of the 
states assembled at the Second Peace Conference at The 
Hague in 1907 in Conventions II and III distinguished 
between " recourse to armed force " [recours a la force 
armee] and " hostilities ,: [les hostilites]. In Convention 
II the powers state their desire to avoid " armed conflicts 
of a pecuniary origin ", while the preamble of Conven- 
tion III states that the Contracting Powers 

Considering that it is important, in order to ensure the main- 
tenance of pacific relations, that hostilities should not commence 
without previous warning ; 

That it is equally important that the existence of a state of war 
should be notified without delay to neutral Powers ; 

have agreed upon the following articles. 

Before 1907 some writers had maintained that there 
was some sort of " political morality " which should be 
observed by states obliging them to make it publicly 
known before engaging in war. There was, however, be- 
fore 1907 no legal obligation to make a declaration be- 
fore engaging in hostilities and the legality of war with- 
out declaration was admitted in practice and by the 
courts. Evidence of the confusion which such a position 
may entail may be seen in the early stages of the Kusso- 
Japanese war, 1904, as well as the Spanish- America war, 



96 STRAITS IN PEACE AND WAR 

1898. With these facts in mind, the delegates at The 
Hague in 1907 hoped to and did, take a step toward peace 
by defining the conditions essential to the legal opening 
of hostilities. 

The experience of states of the world since 1907 would 
seem to be sufficient to prove the legal value of a conven- 
tion which would fix the time of and prerequisites for the 
opening of hostilities. The demarcation of the line be- 
tween the use of force in time of peace and the hostile 
use of force in time of war should not be left uncertain. 
Frequently the use of force in time of peace has brought 
about conditions that have made war unnecessary. 
Without the demarcation of a line between peace and 
war, uncertainty as to the rights of the parties using 
force as well as of third parties prevails. Other con- 
ventions of the Hague Conference of 1907 rest upon the 
Convention Relating to the Opening of Hostilities. The 
discussions at the Hague in 1907 give ample evidence of 
the distinction between the idea of the resort to the use 
of force and the resort to war. The parties signing and 
ratifying the Hague Convention acted with clear under- 
standing upon this matter and much of the recent con- 
fusion is due to writing and discussion that fails to make 
the legally established distinction which has prevailed 
since 1907. Some of these writers have based their con- 
clusions upon eighteenth and nineteenth century prac- 
tice and decisions from some of the unfortunate con- 
sequences of which the efforts of 1907 aimed to escape. 
Others have argued in a fashion implying that the Cove- 
nant of the League of Nations superseded all existing 
treaties and established a new vocabulary for interna- 
tional law and new principles for interpretation of 
treaties. Such methods discredit their conclusions and 
weaken confidence in the Covenant of the League. The 
Hague Convention of 1907, not drawn up at a time of 
exceptional international stress, aimed to take steps to- 
ward the maintenance of peace in the world on the basis 



HAGUE CONVENTION" III, 190 7 97 

•of respect for law, and no state or states were under 
compulsion to affix their signatures or to accept the con- 
ventions. The method of procedure in relation to the 
opening of hostilities may in brief summary show this. 
Making Hague Convention III, 1907. — Before draw- 
ing up the Convention Relative to the Opening of Hos- 
tilities at The Hague, 1907, a questionnaire was prepared 
by the President of the subcommission to which the topic 
was committed for presentation. This questionnaire was 
as follows: 

1. Is it desirable to establish an international understanding 
relative to the opening of hostilities? 

(On the supposition of an affirmative response to this ques- 
tion : ) 

2. Is it best to require that the opening of hostilities be pre- 
ceded by a declaration of war or an equivalent act? 

3. Is it best to fix upon a time which must elapse between the 
notification of such an act and the opening of hostilities? 

4. Should it be stipulated that the declaration of war or equiv- 
alent act to be notified to neutrals? 

And by whom? 

5. What should be the consequences of a failure to observe 
the preceding rules? 

6. What is the diplomatic form in which it is best to set out 
the understanding? (Ill Proceedings of the Hague Peace 
Conference, Carnegie Endowment translation, p. 253.) 

The first question was answered by a unanimous 
affirmative. There was, however, discussion as to 
whether there should be a requirement of a definite pe- 
riod between the declaration and the first act of hostili- 
ties. The Institute of International Law at its meeting 
in 1906 had been unable to agree that there should be a 
specified interval between the declaration and the act 
of hostilities. Since the state of war affects not merely 
the relations between the belligerents but also between 
belligerents and neutrals, it was pointed out in the dis- 
cussions that this change should be made known to neu- 
trals and in order that this might be done, the Conven- 
tion provided in article 2 that : 



98 STRAITS IN PEACE AND WAR 

The state of war must be notified to the neutral powers with- 
out delay, and shall not take effect in regard to them until after 
the receipt of a notification, which may even be given by tele- 
graph. Neutral powers, nevertheless, can not plead the absence 
of notification if it is established beyond doubt that they were in 
fact aware of the state of war. 

Both in the preamble and in the articles of this Hague 
Convention III, the distinction between hostilities and a 
state of war is recognized. There might be a state of 
war without any hostilities or conflict of the armed pub- 
lic forces. The neutral rights and obligations arose from 
a known state of war regardless of whether any hostili- 
ties had or had not taken place. 

Many of the other conventions drawn up at The 
Hague in 1907 presuppose the existence of a requirement 
making a declaration of war necessary, e.g., to determine 
days of grace, to determine right to convert merchant 
vessels into vessels of war, etc. 

Radio in time of peace. — The use of radio in time of 
peace has been regulated by successive conferences during 
the twentieth century. Each conference has had new 
problems before it as the use and possibilities of use of 
radio have been extended. Several of the most recent 
conferences have been mainly concerned with details 
often of a highly technical character. Regulations for 
standardized wave lengths, etc., have been found essential 
for effectivity of radio communication. It has been 
clearly recognized that international cooperation is es- 
sential and at the same time the greatest possible national 
freedom is desirable. This is evident in the work of the 
conferences of Berlin (1906), and London (1912), Wash- 
ington (1927), and Madrid (1932). In the time of peace 
the use of radio which is not in contravention to the 
agreements under the international conventions is wholly 
a matter of control of the authority within whose juris- 
diction the station may be and under the convention 
states parties to the terms undertake to enforce pro- 
visions of the articles. No control of stations outside na- 



RADIO, MINE LAYING 99 

tional jurisdiction is conferred though agreements are 
made as to their operation. A station upon a merchant 
vessel on the high sea in time of peace would, therefore, 
be under the jurisdiction of the flag which the vessel law- 
fully flies. When a vessel flying the flag of one state is 
within the territorial waters of another state, it is gener- 
ally accepted that for acts which take effect outside the 
vessel the state within whose waters a vessel is may 
regulate the action of the vessel. 

Radio in war. — The regulation of radio in time of war 
has received consideration at the Naval War College 
from time to time since 1907. (See General Index, 1901- 
30.) The conclusion from these discussions and from the 
practice in the World War may be summarized in article 
2 of the Report of the Committee of Jurists : 

Belligerent and neutral Powers may regulate or prohibit the 
operation of radio stations within their jurisdiction. (1924 Naval 
War College, International Law Documents, p. 100.) 

Mine laying. — The use of mines has long been a subject 
of differing opinion. Many regarded mines as embody- 
ing an unseen menace which should be prohibited, but 
as in the case of torpedoes and other modern means of 
warfare such objections have received relatively little 
attention other than to lead to the formulating of rules 
against mine laying involving unnecessary risk to non- 
combatants and neutrals. The use of mines during the 
Russo-Japanese war 1904—05 brought the matter to the 
attention of states just before the Hague Peace Confer- 
ence of 1907, and that conference drafted a convention 
upon the subject of submarine mines. This convention 
provided : 

Article 1. 
It is forbidden : 

1. To lay unanchored automatic contact mines, except when 
they are so constructed as to become harmless one hour at most 
after those who laid them cease to control them ; 

2. To lay anchored automatic contact mines which do not be- 
come harmless as soon as they have broken loose from their moor- 
ings; 



100 STKAITS IN PEACE AND WAR 

3. To use torpedoes which do not become harmless when they 
have missed their mark. 

ARTICLE 2. 

It is forbidden to lay automatic contact mines off the coast 
and ports of the enemy, with the sole object of intercepting com- 
mercial shipping. 

ARTICLE 3. 

When anchored automatic contact mines are employed, every 
possible precaution must be taken for the security of peaceful 
shipping. 

The belligerents undertake to do their utmost to render these 
mines harmless within a limited time, and, should they cease to 
be under surveillance, to notify the danger zones soon as mili- 
tary exigencies permit, by a notice addressed to shipowners, 
which must also be communicated to the Governments through 
the diplomatic channel. 

ARTICLE 4. 

Neutral powers which lay automatic contact mines off its coasts 
must observe the same rules and take the same precautions as 
are imposed on belligerents. 

The neutral Power must inform ship-owners, by a notice issued 
in advance, where automatic contact mines have been laid. This 
notice must be communicated at once to the Governments through 
the diplomatic channel. (36 U.S. Statutes, pp. 2332, 2343.) 

A somewhat extended discussion of these and other 
articles of Hague Convention VIII relative to the laying 
of automatic contact submarine mines may be found in 
topic IV, pp. 100-138, of Naval War College, Interna- 
tional Law Topics and Discussions, 1914. 

Mines in World War. — Mines had been found useful 
in the Kusso-Japanese and other wars and were used 
early in the World War. The American Ambassador at 
Berlin telegraphed to the Secretary of State on August 
7, 1914: 

The Foreign Office has the honor to inform the Embassy of 
the United States of America that during the state of war in 
which the German Empire now finds itself, the necessity will 
arise, according to prospects, of blockading with mines the points 
of departure for attacks on the part of hostile fleets against 



MINES IN WORLD WAR 101 

Germany, and the ports of shipment, departing and arriving, of 
troop transport. 

The Foreign Office begs the United States Embassy to bring 
this to the knowledge of its Government as soon as possible in 
order that shipping may be warned in due time against entering 
harbors and roadsteads which may serve as bases for the hostile 
forces. (1914 U.S. Foreign Relations, Supplement, p. 454, note 2.) 

The Secretary of State on August 10 asked the Ameri- 
can Ambassador in Great Britain if there was any foun- 
dation for the report that belligerents were scattering 
contact mines in the Channel. On the following day a 
reply was received, 

The naval attache is assured by Admiralty officials that Admir- 
alty have not laid and will not lay mines in navigable waters 
except at entrance of ports they wish to defend. Sir Edward 
Grey tells me that Germany has been laying contact mines in the 
North Sea. The German mine-laying ship Konigen Luise, recently 
destroyed by H.M.S. AmplUon, was engaged in laying a line of 
contact mines to extjend across the North Sea. (Ibid, p. 455.) 

On the same day the British Charge in Washington 
presented to the Secretary of State a copy of a telegram 
he had received the evening before from the Foreign 
Office, as follows: 

The Germans are scattering contact mines indiscriminately about 
the North Sea in the open sea without regard to the consequences 
to merchantmen. Two days ago four large merchant ships were 
observed to pass within a mile of the mine field which sank 
H.M.S. Amphion. The waters of the North Sea must therefore be 
regarded as perilous in the last degree to merchant shipping of 
all nations. In view of the methods adopted by Germany the 
British Admiralty must hold themselves fully at liberty to adopt 
similar measures in self-defense which must inevitably increase 
the dangers to navigation in the North Sea. But, before doing 
so, they think it right to issue this warning in order that mer- 
chant ships under neutral flags trading with North Sea ports 
should be turned back before entering the area of such exceptional 
danger. (Ibid.) 

While taking note of this communication and calling 
attention to the obligations under article 1 of VIII 
Hague Convention, 1907, the reply of August 13, said : 



102 STRAITS IN" PEACE AND WAR 

The Secretary of State is loath to believe that a signatory to 
that convention would wilfully disregard its treaty obligation, 
which was manifestly made in the interest of neutral shipping. 

All restrictions upon the rights of neutrals upon the high seas, 
the common highway of nations, during the progress of a war, 
are permitted in the interests of the belligerents, who are bound 
in return to prevent their hostile operations from increasing the 
hazard of neutral ships in the open sea so far as the exigencies 
of the war permit. 

If an enemy of His Majesty's Government has, as asserted, 
endangered neutral commerce by an act in violation of the Hague 
convention, which can not be justified on the ground of military 
necessity, the Secretary of State perceives no reason for His 
Majesty's Government adopting a similar course, which would 
add further dangers to the peaceful navigation of the high seas by 
vessels of neutral powers. 

The Secretary of State, therefore, expresses the earnest and 
confident hope that His Majesty's Government may not feel com- 
pelled to resort, as a defensive measure, to a method of naval 
warfare, which would appear to be contrary to the terms of the 
Hague convention and impose upon the ships and lives of neutrals 
a needless menace when peaceably navigating the high seas. 
(Ibid, p. 456.) 

On August 19 another communication from the British 
Charge threw down the argument for neutral obligation 
which was later often brought forward by the belliger- 
ents, 

His Majesty's Government share the reluctance of the Secre- 
tary of State to see the practice extended and the danger to 
neutral shipping increased. At the same time His Majesty's 
Charge d'Affairs is instructed to point out that if Great Britain 
refrains from adopting the methods of Germany, the result is 
that Germany receives immunity unless the neutral powers can 
find some means of making Germany feel that she cannot con- 
tinue to preserve all facilities for receiving trade and supplies 
through neutral shipping while impeding British commerce by 
means the use of which by Great Britain is deprecated by the 
United States Government. (Ibid, p. 458.) 

On August 23 a communication further announced, 

The Admiralty wish to draw attention to their previous warn- 
ing to neutrals of the danger of traversing the North Sea. The 
Germans are continuing their practice of laying mines indis- 



MINES IN WORLD WAR 103 

criminately upon the ordinary trade routes. These mines do not 
conform to the conditions of the Hague convention; they do not 
become harmless after a certain number of hours ; they are not 
laid in connection with any definite military scheme such as the 
closing of a military port or as a distinct operation against a fight- 
ing fleet, but appear to be scattered on the chance of catching 
individual British war or merchant vessels. In consequence of 
this policy neutral ships, no matter what their destination, are 
exposed to the gravest dangers. Two Danish vessels, the S.S. 
Maryland and the S.S. Broberg, have within the last twenty-four 
hours been destroyed by these deadly engines in the North Sea 
while traveling on the ordinary trade routes at a considerable 
distance from the British coast. In addition to this, it is re- 
ported that two Dutch steamers clearing from Swedish ports 
were yesterday blown up by German mines in the Baltic. In 
these circumstances the Admiralty desire to impress not only on 
British but on neutral shipping the vital importance of touching 
at British ports before entering the North Sea, in order to as- 
certain according to the latest information the routes and chan- 
nels which the Admiralty are keeping swept and along which 
these dangers to neutrals and merchantmen are reduced as far 
as possible. The Admiralty, while reserving to themselves the 
utmost liberty of retaliatory action against this new form of 
warfare, announce that they have not so far laid any mines 
during the present war and that they are endeavouring to keep 
the sea routes open for peaceful commerce. (Ibid, p. 458.) 

The German Ambassador in a communication to the 
American Secretary of State dated September 10, 1914, 
said, 

Mr. Secretary of Statei: By direction of my Government, I 
have the honor respectfully to bring the following to your excel- 
lency's knowledge: 

No foundation for idea prevalent among neutrals abroad that 
sea trade with Germany is tied up by blockade of German ports. 
No port is blockaded and nothing stands in the way of neutral 
states' sea trade with Germany. 

Assertions from England that North Sea is infested with Ger- 
man mines incorrect. 

Neutral vessels bound for German North Sea ports should steer 
by day for a point 10 nautical miles northwest of Helgoland. 
There German pilots will be provided to bring ships into port. 

Neutral vessels should steer direct for Baltic Sea ports, off 
every one of which there are pilots. 



104 STRAITS IN PEACE AND WAR 

Prohibition of coal export not extended to bunker coal, and 
coaling assured. (Ibid, p. 460.) 

On October 6 the French Government issued a notice 
asserting that Austria-Hungary was illegally laying 
mines in the Adriatic and that the French Navy would 
lay mines in conformity with stipulations of Convention 
VIII. 

Soon protests, notes, counter notes, denials, etc., came 
from nearly all foreign offices and there followed what 
one reply characterized as a " volume of strong words 
and moral indignation." These communications came 
from both belligerents each affirming that its opponent 
was in the wrong, but generally admitting that the lay- 
ing of mines for defense under the terms of Convention 
VIII was lawful. 

Proposals of the United States, 1915. — The declaration 
by Germany of the war zone about Great Britain and 
the controversies over the use of mines led the United 
States on February 20, 1915, to propose to Germany and 
Great Britain the basis of an agreement. 

Germany and Great Britain to agree : 

(1) That neither will sow any floating mines, whether upon 
the high sea or in territorial waters; that neither will plant on 
the high seas anchored mines except within cannon range of 
harbors for defensive purposes only ; and that all mines shall bear 
the stamp of the government planting them and be so constructed 
as to become harmless if separated from their moorings ; 

(2) That neither will use submarines to attack merchant 
vessels of any nationality except to enforce the right of visit and 
search ; 

(3) That each will require their respective merchant vessels 
not to use neutral flags for the purpose of disguise or ruse de 
guerre. (1915 U.S. Foreign Relations, Supplement, p. 119.) 

To this proposition the German Government replied, 
February 28 : 

With regard to the various points of the American note they beg 
to make the following remarks : 

1. With regard to the sowing of mines, the German Government 
would be willing to agree as suggested not to use floating mines 



AMERICAN ATTITUDE 105 

and to have anchored mines constructed as indicated. Moreover, 
they agree to put the stamp of the Government on all mines to be 
planted. On the other hand, it does not appear to them to be 
feasible for the belligerents wholly to forego the use of anchored 
mines for offensive purposes. 

2. The German Government would undertake not to use their 
submarines to attack mercantile of any flag except when necessary 
to enforce the right of visit and search. Should the enemy na- 
tionality of the vessel or the presence of contraband be ascer- 
tained submarine would proceed in accordance with the general 
rules of international law. (Ibid. p. 130.) 

Great Britain did not reply till March 15 and then 
said: 

On the 22d of February last I received a communication from 
your excellency of the identic note addressed to His Majesty's 
Government and to Germany respecting an agreement on certain 
points as to the conduct of the war at sea. The reply of the Ger- 
man Government to his note has been published and it is not 
understood from the reply that the German Government are pre- 
pared to abandon the practice of sinking British merchant vessels 
by submarines, and it is evident from their reply that they will 
not abandon the use of mines for offensive purposes on the high 
seas as contrasted with the use of mines for defensive purposes 
only within cannon range of their own harbours as suggested by 
the Government of the United States. This being so, it might 
appear unnecessary for the British Government to make any 
further reply than to take note of the German answer. We desire, 
however, to take the opportunity of making a fuller statement of 
the whole position and of our feeling with regard to it. (Ibid, p. 
140.) 

There followed in the somewhat long note a statement 
in regard to the German conduct of the war and of the 
grounds which Great Britain considered as justifying its 
action on various matters. 

Summary of the attitude of the United States. — The 
Counselor for the Department of State, Frank L. Polk, 
sent to Representative John J. Fitzgerald, a memoran- 
dum upon the attitude taken by the Department of State 
in way of protest against action of belligerents consid- 
ered in violation of the principles of international law. 



106 STRAITS IN PEACE AND WAR 

The summary of the attitude toward the use of mines ur> 
to August 18, 1916, was stated as follows : 

The illegal use of mines in the present war has not been con- 
fined to any one belligerent. Both sides have violated the rights 
of neutrals and have sown large areas of the high seas with 
mines, the result of which has been the destruction of a number 
of neutral vessels. 

On August 7, 1914, the German Government notified all neutraL 
countries that the trade routes to English ports would be closed 
by mines. 

In a note dated August 11, 1914, the British Ambassador al- 
leged that Germany had scattered contact mines indiscriminately 
about the North Sea, and informed this Government that in view 
of this fact the British Admiralty would adopt similar methods- 
in self-defense. 

On August 13 the Secretary of State protested against such, 
action on the part of Great Britain, stating that even " if an 
enemy of His Majesty's Government has, as asserted, endangered 
neutral commerce by an act in violation of the Hague conven- 
tion, which cannot be justified on the ground of military neces- 
sity," this country saw no reason for Great Britain adopting a 
similar course which would add further to the dangers to peace- 
ful navigation of the high seas by vessels of neutral powers. 

On November 3, 1914, Great Britain, alleging that during the 
past week the German Government had scattered mines indis- 
criminately in the open seas and on main trade routes from 
America to Liverpool via the north of Ireland, that peaceful 
merchant ships have already been blown up, and that the mines 
were laid by some merchant vessels flying neutral flags, declared 
the North Sea a military area, and that all ships that did not 
follow an indicated course would be in grave danger from the- 
mines it had been necessary to lay. 

On February 4, 1915, Germany in retaliation for various alleged 
illegal acts on the part of Great Britain, notified neutral nations 
that " the waters surrounding Great Britain and Ireland, includ- 
ing the whole English Channel, are hereby declared a war zone.'* 
It was indicated at the same time that they would ignore the rule 
of international law requiring visit and search and would sink 
merchantmen without first ascertaining whether they were neutral - 
or enemy ships and without making provisions for the safety of 
passengers and crew. 

To this proclamation the United States on February 10, T915„ 
protested, and pointed out that such action on the part of Ger- 
many would endanger the lives and property of citizens of neu- 



KESUME 107 

tral and friendly nations, and would violate the principles of 
international law. In its note the United States stated that: 

" The Government of the United States has not consented to 
or acquiesced in any measures which may have been taken by 
the other belligerent nations in the present war which operate 
to restrain neutral trade, but has, on the contrary, taken in all 
such matters a position which warrants it in holding those gov- 
ernments responsible in the proper way for any unlawful effects 
upon American shipping which the accepted principles of interna- 
tional law do not justify, and that it therefore regards itself 
as free in the present instance to take, with a clear conscience 
and upon accepted principles, the position indicated in this note." 

On February 20, 1915, the United States in the interest of neu- 
tral commerce sent identic notes to Germany and Great Britain 
in which the hope was expressed that these two belligerents " may 
through reciprocal concessions, find a basis for agreement which 
will relieve neutral ships engaged in peaceful commerce from the 
great dangers which they will incur on the high seas adjacent 
to the coasts of the belligerents," and outlined a course of action 
with regard to the sowing of mines and the importation of food- 
stuffs into Germany, to which it was hoped they would agree. 
Unfortunately it was not possible to secure the consent of the two 
Governments to the proposal. (1916 U.S. Foreign Relations, 
Supplement, p. 5.) 

Resume. — While strained relations may cause a state 
to exercise such measures as it may deem expedient 
within the laws of peace, such relations do not permit 
the exercise of the rights of war toward third states. 
The Pact of Paris of August 27, 1928, declares against 
war, but not against resort to peaceful measures for 
settling differences between states. A strait which is the 
sole highway communication between two open seas, as 
the Strait of Gibraltar, may not be closed in peace or 
war, while a strait which forms a more convenient or 
more commonly used highway to which there is a reason- 
able alternative way may be subject to such restrictive 
measures upon its use as the adjacent states may deem 
essential for self-defense. The use of radio is generally 
prescribed by international conventions to which the 
leading states of the world are parties. The conventions 
do not give to a state jurisdiction outside territorial limits 
over vessels not flying its flag though in time of war 

73500—34 8 



108 STEAITS IN" PEACE AND WAR 

rules may be more extended and action necessary for 
self-defense may be taken in the immediate area of bellig- 
erent operations. In recent years, since 1907, most 
states have by convention or in practice not resorted to 
war without previous declaration many of which in the 
World War contained detailed reasons and specific indi- 
cation of the time when the status of war would exist. 
After such declaration the use of submarine mines under 
enumerated restrictions is permitted by the Convention 
of 1907. 

SOLUTION 

1. In time of peace. — (a) States C and D have no 
exceptional rights of jurisdiction over a strait along their 
coasts connecting generally used water areas, though 
states C and D may take action necessary for self- 
defense. 

(b) Vessels of other states have the right of innocent 
passage through the strait but they are subject to rea- 
sonable regulations while within the territorial waters of 
C or D. 

(c) The Bara as a merchant vessel of state B is en- 
tirely exempt from the jurisdiction of state C while on 
the high sea, but must conform to the regulations of state 
C and D when within the jurisdiction of those states. 

2. In time of war. — (a) States C and D have a right to 
regulate the use of their territorial waters and the waters 
within the immediate area of their operations. 

( b ) Vessels of neutral states have the right of innocent 
passage through the strait though they are subject to 
reasonable regulations while within the territorial waters 
of C or D. In view of the fact that the strait is not the 
sole but the more convenient and commonly used water- 
way, the rights of C or D may, as an extreme measure, 
extend to closing of the strait. 

(c) After the declaration of war, the Bara, as a mer- 
chant vessel of state B, is under obligation to observe the 
regulations of state C or D when within the territorial 
jurisdiction or the immediate area of the operation of 
their forces. 



Appendixes 

Appendix I. Convention to frame constitution for Philippine 

Islands. January 17, 1933 
Appendix II. Convention to frame constitution for Philippine 

Islands. March 24, 1934 

109 



APPENDIX I 

[Public— No. 311— 72d Congress] 1 

[H.R. 7233] 

AN ACT 

To enable the people of the Philippine Islands to adopt a con- 
stitution and form a government for the Philippine Islands, to 
provide for the independence of the same, and for other 
purposes. 

Be it enacted by the Senate and House of Representa- 
tives of the United States of America in Congress 
assembled, 

CONVENTION TO FRAME CONSTITUTION FOR PHILIPPINE 

ISLANDS 

Section 1. The Philippine Legislature is hereby au- 
thorized to provide for the election of delegates to a con- 
stitutional convention, which shall meet in the hall of 
the house of representatives in the capital of the Philip- 
pine Islands, at such time as the Philippine Legislature 
may fix, within one year after the enactment of this Act, 
to formulate and draft a constitution for the government 
of the Commonwealth of the Philippine Islands, subject 
to the conditions and qualifications prescribed in this 
Act, which shall exercise jurisdiction over all the terri- 
tory ceded to the United States by the treaty of peace 
concluded between the United States and Spain on the 
10th day of December, 1898, the boundaries of which are 
set forth in Article III of said treaty, together with 
those islands embraced in the treaty between Spain and 
the United States concluded at Washington on the 7th 
day of November, 1900. The Philippine Legislature shall 
provide for the necessary expenses of such convention. 



1 This act was rejected by the Philippine Legislature by a resolution 
of October 17. 1933. 

Ill 



112 PROVISIONS OF PHILIPPINE CONSTITUTION 

CHARACTER OF CONSTITUTION MANDATORY PROVISIONS 

Sec. 2. The constitution formulated and drafted shall 
be republican in form, shall contain a bill of rights, and 
shall, either as a part thereof or in an ordinance ap- 
pended thereto, contain provisions to the effect that r 
pending the final and complete withdrawal of the sov- 
ereignty of the United States over the Philippine Is- 
lands^ — 

(a) All citizens of the Philippine Islands shall owe 
allegiance to the United States. 

(b) Every officer of the government of the Common- 
wealth of the Philippine Islands shall, before entering 
upon the discharge of his duties, take and subscribe an 
oath of office, declaring, among other things, that he rec- 
ognizes and accepts the supreme authority of and will 
maintain true faith and allegiance to the United States. 

(c) Absolute toleration of religious sentiment shall be 
secured and no inhabitant or religious organization 
shall be molested in person or property on account of 
religious belief or mode of worship. 

(d) Property owned by the United States, cemeteries, 
churches, and parsonages or convents appurtenant there- 
to, and all lands, buildings, and improvements used ex- 
clusively for religious, charitable, or educational pur- 
poses shall be exempt from taxation. 

(e) Trade relations between the Philippine Islands 
and the United States shall be upon the basis prescribed 
in section 6. 

(f ) The public debt of the Philippine Islands and its 
subordinate branches shall not exceed limits now or here- 
after fixed by the Congress of the United States ; and no 
loans shall be contracted in foreign countries without 
the approval of the President of the United States. 

(g) The debts, liabilities, and obligations of the pres- 
ent Philippine government, its Provinces, municipalities, 
and instrumentalities, valid and subsisting at the time 
of the adoption of the constitution, shall be assumed and 
paid by the new government. 

(h) Provision shall be made for the establishment 
and maintenance of an adequate system of public schools, 
primarily conducted in the English language. 

(i) Acts affecting currency, coinage, imports, exports, 
and immigration shall not become law until approved by 
the President of the United States. 



APPROVAL OF CONSTITUTION 113 

(j) Foreign affairs shall be under the direct super- 
vision and control of the United States. 

(k) All acts passed by the legislature of the Common- 
wealth of the Philippine Islands shall be reported to 
the Congress of the United States. 

(1) The Philippine Islands recognizes the right of 
the United States to expropriate property for public 
uses, to maintain military and other reservations and 
armed forces in the Philippines, and, upon order of the 
President, to call into the service of such armed forces 
all military forces organized by the Philippine govern- 
ment. 

(m) The decisions of the courts of the Commonwealth 
of the Philippine Islands shall be subject to review by 
the Supreme Court of the United States as provided in 
paragraph (6) of section 7. 

(n) The United States may by Presidential proclama- 
tion exercise the right to intervene for the preservation 
of the government of the Commonwealth of the Philip- 
pine Islands and for the maintenance of the govern- 
ment as provided in the constitution thereof, and for 
the protection of life, property, and individual liberty 
and for the discharge of government obligations under 
and in accordance with the provisions of the constitu- 
tion. 

(o) The authority of the United States High Commis- 
sioner to the government of the Commonwealth of the 
Philippine Islands, as provided in this Act, shall be 
recognized. 

(p) Citizens and corporations of the United States 
shall enjoy in the Commonwealth of the Philippine 
Islands all the civil rights of the citizens and corpora- 
tions, respectively, thereof. 

SUBMISSION OF CONSTITUTION TO THE PRESIDENT OF THE 

UNITED STATES 

Sec. 3. Upon the drafting and approval of the con- 
stitution by the constitutional convention in the Philip- 
pine Islands, the constitution shall be submitted within 
two years after the enactment of this Act to the President 
of the United States, who shall determine whether or 
not it conforms with the provisions of this Act. If the 
President finds that the proposed constitution conforms 
substantially with the provisions of this Act he shall so 



114 SUBMISSION" OF CONSTITUTION 

certify to the Governor General of the Philippine 
Islands, who shall so advise the constitutional conven- 
tion. If the President finds that the constitution does 
not conform with the provisions of this Act he shall so 
advise the Governor General of the Philippine Islands, 
stating wherein in his judgment the constitution does not 
so conform and submitting provisions which will in his 
judgment make the constitution so conform. The Gov- 
ernor General shall in turn submit such message to the 
constitutional convention for further action by them pur- 
suant to the same procedure hereinbefore defined, until 
the President and the constitutional convention are in 
agreement. 

SUBMISSION OF CONSTITUTION TO FILIPINO PEOPLE 

Sec. 4. After the President of the United States has 
certified that the constitution conforms with the pro- 
visions of this Act, it shall be submitted to the people 
of the Philippine Islands for their ratification or rejec- 
tion at an election to be held within four months after 
the date of such certification, on a date to be fixed by 
the Philippine Legislature, at which election the quali- 
fied voters of the Philippine Islands shall have an op- 
portunity to vote directly for or against the proposed 
constitution and ordinances appended thereto. Such 
election shall be held in such manner as may be pre- 
scribed by the Philippine Legislature, to which the re- 
turn of the election shall be made. The Philippine 
Legislature shall by law provide for the canvassing of 
the return and shall certify the result to the Governor 
General of the Philippine Islands, together with a state- 
ment of the votes cast, and a copy of said constitution 
and ordinances. If a majority of the votes cast shall be 
for the constitution, such vote shall be deemed an ex- 
pression of the will of the people of the Philippine 
Islands in favor of Philippine independence, and the 
Governor General shall, within thirty days after re- 
ceipt of the certification from the Philippine Legisla- 
ture, issue a proclamation for the election of officers 
of the government of the Commonwealth of the Philip- 
pine Islands provided for in the constitution. The 
election shall take place not earlier than three months 
nor later than six months after the proclamation by 
the Governor General ordering such election. When 



PKOPERTY AND OTHER RELATIONS 115 

the election of the officers provided for under the con- 
stitution has been held and the results determined, the 
Governor General of the Philippine Islands shall certify 
the results of the election to the President of the United 
States, who shall thereupon issue a proclamation an- 
nouncing the results of the election, and upon the issu- 
ance of such proclamation by the President the existing 
Philippine government shall terminate and the new gov- 
ernment shall enter upon its rights, privileges, powers, 
and duties, as provided under the constitution. The 
present government of the Philippine Islands shall pro- 
vide for the orderly transfer of the functions of govern- 
ment. 

If a majority of the votes cast are against the consti- 
tution, the existing government of the Philippine 
Islands shall continue without regard to the provisions 
of this Act. 

TRANSFER OF PROPERTY AND RIGHTS TO PHILIPPINE COM- 
MONWEALTH 

Sec. 5. All the property and rights which may have 
been acquired in the Philippine Islands by the United 
States under the treaties mentioned in the first section 
of this Act, except such land or other property as has 
heretofore been designated by the President of the 
United States for military and other reservations of 
the Government of the United States, and except such 
land or other property or rights or interests therein as 
may have been sold or otherwise disposed of in accord- 
ance with law, are hereby granted to the government 
of the Commonwealth of the Philippine Islands when 
constituted. 

RELATIONS WITH THE UNITED STATES PENDING COMPLETE 

INDEPENDENCE 

Sec. 6. After the date of the inauguration of the gov- 
ernment of the Commonwealth of the Philippine Islands 
trade relations between the United States and the Phil- 
ippine Islands shall be as now provided by law, subject 
to the following exceptions : 

(a) There shall be levied, collected, and paid on all 
refined sugars in excess of fifty thousand long tons, and 
on unrefined sugars in excess of eight hundred thousand 



116 DUTIABLE ARTICLES 

long tons, coming into the United States from the Phil- 
ippine Islands in any calendar year, the same rates of 
duty which are required by the laws of the United States 
to be levied, collected, and paid upon like articles im- 
ported from foreign countries. 

(b) There shall be levied, collected, and paid on all 
coconut oil coining into the United States from the 
Philippine Islands in any calendar year in excess of two 
hundred thousand long tons, the same rates of duty 
which are required by the laws of the United States to 
be levied, collected, and paid upon like articles imported 
from foreign countries. 

(c) There shall be levied, collected, and paid on all 
yarn, twine, cord, cordage, rope and cable, tarred or un- 
tarred, wholly or in chief value of manila (abaca) or 
other hard fibers, coming into the United States from 
the Philippine Islands in any calendar year in excess of 
a collective total of three million pounds of all such 
articles hereinbefore enumerated, the same rates of duty 
which are required by the laws of the United States to 
be levied, collected, and paid upon like articles imported 
from foreign countries. 

(d) In the event that in any year the limit in the case 
of any article which may be exported to the United 
States free of duty shall be reached by the Philippine 
Islands, the amount or quantity of such articles produced 
or manufactured in the Philippine Islands thereafter 
that may be so exported to the United States free of duty 
shall be allocated, under export permits issued by the 
government of the Commonwealth of the Philippine 
Islands, to the producers or manufacturers of such arti- 
cles proportionately on the basis of their exportation 
to the United States in the preceding year; except that 
in the case of unrefined sugar the amount thereof to be 
exported annually to the United States free of duty shall 
be allocated to the sugar-producing mills of the islands 
proportionately on the basis of their average annual pro- 
duction for the calendar years 1931, 1932, and 1933, and 
the amount of sugar from each mill which may be so 
exported shall be allocated in each year between the mill 
and the planters on the basis of the proportion of sugar to 
which the mill and the planters are respectively entitled. 
The government of the Philippine Islands is authorized 
to adopt the necessary laws and regulations for putting 
into effect the allocation hereinbefore provided. 



DUTIES AND TAXES 117 

(e) The government of the Commonwealth of the 
Philippine Islands shall impose and collect an export tax 
on all articles that may be exported to the United States 
from the Philippine Islands free of duty under the pro- 
visions of existing law as modified by the foregoing pro- 
visions of this section, including the articles enumerated 
in subdivisions (a), (b), and (c), within the limitations 
therein specified, as follows : 

(1) During the sixth year after the inauguration of the 
new government the export tax shall be 5 per centum of 
the rates of duty which are required by the laws of the 
United States to be levied, collected, and paid on like 
articles imported from foreign countries; 

(2) During the seventh year after the inauguration of 
the new government the export tax shall be 10 per 
centum of the rates of duty which are required by the 
laAvs of the United States to be levied, collected, and 
paid on like articles imported from foreign countries ; 

(3) During the eighth year after the inauguration of 
the new government the export tax shall be 15 per centum 
of the rates of duty which are required by the laws of 
the United States to be levied, collected, and paid on like 
articles imported from foreign countries; 

(4) During the ninth year after the inauguration of 
the new government the export tax shall be 20 per 
centum of the rates of duty which are required by the 
laws of the United States to be levied, collected, and 
paid on like articles imported from foreign countries ; 

(5) After the expiration of the ninth year after the 
inauguration of the new government the export tax shall 
be 25 per centum of the rates of duty which are required 
by the laws of the United States to be levied, collected, 
and paid on like articles imported from foreign countries. 

The government of the Commonwealth of the Philip- 
pine Islands shall place all funds received from such ex- 
port taxes in a sinking fund, and such fund shall, in ad- 
dition to other moneys available for that purpose, be 
applied solely to the payment of the principal and inter- 
est on the bonded indebtedness of the Philippine Islands, 
its Provinces, municipalities, and instrumentalities, until 
such indebtedness has been fully discharged. 

When used in this section in a geographical sense, the 
term " United States " includes all Territories and pos- 
sessions of the United States, except the Philippine Is- 



118 TEMPORARY ADMINISTRATION 

lands, the Virgin Islands, American Samoa, and the 
island of Guam. 

Sec. 7. Until the final and complete withdrawal of 
American sovereignty over the Philippine Islands — 

(1) Every duly adopted amendment to the constitution 
of the government of the Commonwealth of the Philip- 
pine Islands shall be submitted to the President of the 
United States for approval. If the President approves 
the amendment or if the President fails to disapprove 
such amendment within six months from the time of its 
submission, the amendment shall take effect as a part of 
such constitution. 

(2) The President of the United States shall have au- 
thority to suspend the taking effect of or the operation 
of any law, contract, or executive order of the govern- 
ment of the Commonwealth of the Philippine Islands, 
which in his judgment will result in a failure of the gov- 
ernment of the Commonwealth of the Philippine Islands 
to fulfill its contracts, or to meet its bonded indebt- 
edneses and interest thereon or to provide for its sinking 
funds, or which seems likely to impair the reserves for 
the protection of the currency of the Philippine Islands, 
or which in his judgment will violate international obli- 
gations of the United States. 

(3) The Chief Executive of the Commonwealth of the 
Philippine Islands shall make an annual report to the 
President and Congress of the United States of the pro- 
ceedings and operations of the government of the Com- 
monwealth of the Philippine Islands and shall make 
such other reports as the President or Congress may re- 
quest. 

(4) The President shall appoint, by and with the ad- 
vice and consent of the Senate, a United States High 
Commissioner to the government of the Commonwealth 
of the Philippine Islands who shall hold office at the 
pleasure of the President and until his successor is ap- 
pointed and qualified. He shall be known as the United 
States High Commissioner to the Philippine Islands. 
He shall be the representative of the President of the 
United States in the Philippine Islands and shall be 
recognized as such by the government of the Common- 
wealth of the Philippine Islands, by the commanding 
officers of the military forces of the United States, and 
by all civil officials of the United States in the Philip- 
pine Islands. He shall have access to all records of the 



TEMPORARY ADMINISTRATION 119 

government or any subdivision thereof, and shall be 
furnished by the Chief Executive of the Commonwealth 
of the Philippine Islands with such information as he 
shall request. 

If the government of the Commonwealth of the Phil- 
ippine Islands fails to pay any of its bonded or other 
indebtedness or the interest thereon when due or to ful- 
fill any of its contracts, the United States High Commis- 
sioner shall immediately report the facts to the Presi- 
dent, who may thereupon direct the High Commissioner 
to take over the customs offices and administration of the 
same, administer the same, and apply such part of the 
revenue received therefrom as may be necessary for the 
payment of such overdue indebtedness or for the fulfill- 
ment of such contracts. The United States High Com- 
missioner shall annually, and at such other times as the 
President may require, render an official report to the 
President and Congress of the United States. He shall 
perform such additional duties and functions as may be 
delegated to him from time to time by the President un- 
der the provisions of this Act. 

The United States High Commissioner shall receive 
the same compensation as is now received by the Gover- 
nor General of the Philippine Islands, and shall have 
such staff and assistants as the President may deem ad- 
visable and as may be appropriated for by Congress, in- 
cluding a financial expert, who shall receive for sub- 
mission to the High Commissioner a duplicate copy of 
the reports of the insular auditor. Appeals from decis- 
ions of the insular auditor may be taken to the Presi- 
dent of the United States. The salaries and expenses 
of the High Commissioner and his staff and assistants 
shall be paid by the United States. 

The first United States High Commissioner appointed 
under this Act shall take office upon the inauguration of 
the new government of the Commonwealth of the Phil- 
ippine Islands. 

(5) The government of the Commonwealth of the 
Philippine Islands shall provide for the selection of a 
Resident Commissioner to the United States, and shall 
fix his term of office. He shall be the representative of 
the government of the Commonwealth of the Philippine. 
Islands and shall be entitled to official recognition as 
such by all departments upon presentation to the Presi- 
dent of credentials signed by the Chief Executive of said 



120 IMMIGRATION 

government. He shall have a seat in the House of Rep- 
resentatives of the United States, with the right of de- 
bate, but without the right of voting. His salary and 
expenses shall be fixed and paid by the government of 
the Philippine Islands. Until a Resident Commissioner 
is selected and qualified under this section, existing law 
governing the appointment of Resident Commissioners 
from the Philippine Islands shall continue in effect. 

(6) Review by the Supreme Court of the United 
States of cases from the Philippine Islands shall be as 
now provided by law ; and such review shall also extend 
to all cases involving the constitution of the Common- 
wealth of the Philippine Islands. 

Sec. 8. (a) Effective upon the acceptance of this Act 
by concurrent resolution of the Philippine Legislature or 
by a convention called for that purpose, as provided in 
section 17 — 

(1) For the purposes of the Immigration Act of 1917, 
the Immigration Act of 1924 (except section 13 (c)), 
this section, and all other laws of the United States re- 
lating to the immigration, exclusion, or expulsion of 
aliens, citizens of the Philippine Islands who are not 
citizens of the United States shall be considered as if 
they were aliens. For such purposes the Philippine 
Islands shall be considered as a separate country and 
shall have for each fiscal year a quota of fifty. This 
paragraph shall not apply to a person coming or seek- 
ing to come to the Territory of Hawaii who does not 
apply for and secure an immigration or passport visa, 
but such immigration shall be determined by the De- 
partment of the Interior on the basis of the needs of in- 
dustries in the Territory of Hawaii. 

(2) Citizens of the Philippine Islands who are not 
citizens of the United States shall not be admitted to the 
Continental United States from the Territory of Hawaii 
(whether entering such Territory before or after the 
effective date of this section) unless they belong to a 
class declared to be nonimmigrants by section 3 of the 
Immigration Act of 1924 or to a class declared to be 
nonquota immigrants under the provisions of section 4 
of such Act other than subdivision (c) thereof, or unless 
they were admitted to such Territory under an immigra- 
tion visa. The Secretary of Labor shall by regulations 
provide a method for such exclusion and for the admis- 
sion of such excepted classes. 



RECOGNITION OF INDEPENDENCE 121 

(3) Any Foreign Service officer may be assigned to 
duty in the Philippine Islands, under a commission as 
a consular officer, for such period as may be necessary 
and under such regulations as the Secretary of State may 
prescribe, during which assignment such officer shall be 
considered as stationed in a foreign country; but his 
powers and duties shall be confined to the performance 
of such of the official acts and notarial and other serv- 
ices, which such officer might properly perform in respect 
of the administration of the immigration laws if assigned 
to a foreign country as a consular officer, as may be 
authorized by the Secretary of State. 

(4) For the purposes of sections 18 and 20 of the Im- 
migration Act of 1917, as amended, the Philippine 
Islands shall be considered to be a foreign country. 

(b) The provisions of this section are in addition to 
the provisions of the immigration laws now in force, 
and shall be enforced as a part of such laws, and all 
the penal or other provisions of such laws, not inapplica- 
ble, shall apply to and be enforced in connection with 
the provisions of this section. An alien, although ad- 
missible under the provisions of this section, shall not 
be admitted to the United States if he is excluded by 
any provision of the immigration laws other than this 
section, and an alien, although admissible under the pro- 
visions of the immigration laws other than this section, 
shall not be admitted to the United States if he is ex- 
cluded by any provision of this section. 

(c) Terms defined in the Immigration Act of 1924 
shall, when used in this section, have the meaning as- 
signed to such terms in that Act. 

Sec. 9. There shall be no obligation on the part of the 
United States to meet the interest or principal of bonds 
and other obligations of the government of the Philip- 
pine Islands or of the Provincial and municipal govern- 
ments thereof, hereafter issued during the continuance 
of United States sovereignty in the Philippine Islands : 
Provided, That such bonds and obligations hereafter is- 
sued shall not be exempt from taxation in the United 
States or by authority of the United States. 

RECOGNITION OF PHILIPPINE INDEPENDENCE AND WITH- 
DRAWAL OF AMERICAN SOVEREIGNTY 

Sec, 10. On the 4th day of July, immediately follow- 
ing the expiration of a period of ten years from the date 



122 WITHDARWAL OF SOVEREIGNTY 

of the inauguration of the new government under the 
constitution provided for in this Act, the President of 
the United States shall by proclamation withdraw and 
surrender all right of possession, supervision, jurisdic- 
tion, control, or sovereignty then existing and exercised 
by the United States in and over the territory and peo- 
ple of the Philippine Islands, including all military and 
other reservations of the Government of the United 
States in the Philippines (except such land or property 
reserved under section 5 as may be redesignated by the 
President of the United States not later than two years 
after the date of such proclamation), and, on behalf of 
the United States, shall recognize the independence of 
the Philippine Islands as a separate and self-governing 
nation and acknowledge the authority and control over 
the same of the government instituted by the people 
thereof, under the constitution then in force: Provided, 
That the constitution has been previously amended to 
include the following provisions : 

(1) That the property rights of the United States and 
the Philippine Islands shall be promptly adjusted and 
settled, and that all existing property rights of citizens 
or corporations of the United States shall be acknowl- 
edged, respected, and safeguarded to the same extent as 
property rights of citizens of the Philippine Islands. 

(2) That the officials elected and serving under the 
constitution adopted pursuant to the provisions of this 
Act shall be constitutional officers of the free and inde- 
pendent government of the Philippine Islands and qual- 
ified to function in all respects as if elected directly 
under such government, and shall serve their full terms 
of office as prescribed in the constitution. 

(3) That the debts and liabilities of the Philippine 
Islands, its Provinces, cities, municipalities, and instru- 
mentalities, which shall be valid and subsisting at the 
time of the final and complete withdrawal of the sov- 
ereignty of the United States, shall be assumed by the 
free and independent government of the Philippine 
Islands; and that where bonds have been issued under 
authority of an Act of Congress of the United States by 
the Philippine Islands, or any Province, city, or munici- 
pality therein, the Philippine government will make ade- 
quate provision for the necessary funds for the payment 
of interest and principal, and such obligations shall be 



NEUTRALIZATION 123 

a first lien on the taxes collected in the Philippine 
Islands. 

(4) That the government of the Philippine Islands, on 
becoming independent of the United States, will assume 
all continuing obligations assumed by the United States 
under the treaty of peace with Spain ceding said Philip- 
pine Islands to the United States. 

(5) That by way of further assurance the government 
of the Philippine Islands will embody the foregoing pro- 
visions (except paragraph (2)) in a treaty with the 
United States. 

NEUTRALIZATION OF PHILIPPINE ISLANDS 

Sec. 11. The President is requested, at the earliest 
practicable date, to enter into negotiations with foreign 
powers with a view to the conclusion of a treaty for the 
perpetual neutralization of the Philippine Islands, if and 
when Philippine independence shall have been achieved. 

NOTIFICATION TO FOREIGN GOVERNMENTS 

Sec. 12. Upon the proclamation and recognition of the 
independence of the Philippine Islands, the President 
shall notify the governments with which the United 
States is in diplomatic correspondence thereof and in- 
vite said governments to recognize the independence of 
the Philippine Islands. 

TARIFF DUTIES AFTER INDEPENDENCE 

Sec. 13. After the Philippine Islands have become a 
free and independent nation there shall be levied, col- 
lected, and paid upon all articles coming into the United 
States from the Philippine Islands the rates of duty 
which are required to be levied, collected, and paid upon 
like articles imported from other foreign countries: 
Provided, That at least one year prior to the date fixed 
in this Act for the independence of the Philippine 
Islands, there shall be held a conference of representa- 
tives of the Government of the United States and the 
government of the Commonwealth of the Philippine 
Islands, such representatives to be appointed by the 
President of the United States and the Chief Executive 

73500—34 9 



124 STATUTES CONTINUED 

of the Commonwealth of the Philippine Islands, respec- 
tively, for the purpose of formulating recommendations 
as to future trade relations between the Government of 
the United States and the independent government of 
the Philippine Islands, the time, place, and manner of 
holding such conference to be determined by the Presi- 
dent of the United States; but nothing in this proviso 
shall be construed to modify or affect in any way any 
provision of this Act relating to the procedure leading 
up to Philippine independence or the date upon which 
the Philippine Islands shall become independent. 

IMMIGRATION AFTER INDEPENDENCE 

Sec. 14. Upon the final and complete withdrawal of 
American sovereignty over the Philippine Islands the 
immigration laws of the United States (including all 
the provisions thereof relating to persons ineligible to 
citizenship) shall apply to persons who were born in the 
Philippine Islands to the same extent as in the case of 
other foreign countries. 

CERTAIN STATUTES CONTINUED IN FORCE 

Sec. 15. Except as in this Act otherwise provided, the 
laws now or hereafter in force in the Philippine Islands 
shall continue in force in the Commonwealth of the Phil- 
ippine Islands until altered, amended, or repealed by 
the Legislature of the Commonwealth of the Philip- 
pine Islands or by the Congress of the United States, 
and all references in such laws to the Philippines or 
Philippine Islands shall be construed to mean the gov- 
ernment of the Commonwealth of the Philippine Islands. 
The government of the Commonwealth of the Philip- 
pine Islands shall be deemed successor to the present 
government of the Philippine Islands and of all the 
rights and obligations thereof. Except as otherwise 
provided in this Act, all laws or parts of laws relating 
to the present government of the Philippine Islands and 
its administration are hereby repealed as of the date of 
the inauguration of the government of the Common- 
wealth of the Philippine Islands. 

Sec. 16. If any provision of this Act is declared un- 
constitutional or the applicability thereof to any person 
or circumstance is held invalid, the validity of the re- 



ENACTMENT 125 

mainder of the Act and the applicability of such provi- 
sions to other persons and circumstances shall not be 
affected thereby. 

EFFECTIVE DATE 

Sec. 17. The foregoing provisions of this Act shall 
not take effect until accepted by concurrent resolution of 
the Philippine Legislature or by a convention called for 
the purpose of passing upon that question as may be pro- 
vided by the Philippine Legislature. 

Jno N. Garner 
Speaker of the House of Representatives. 

Charles Curtis 

Vice President of the United States and 

President of the Senate. 

In the House of Representatives 

of the United States, 

January 13, 1933. 
The House of Representatives having proceeded, in 
pursuance of the Constitution, to reconsider the bill 
(H. R. 7233) entitled "An act to enable the people of 
the Philippine Islands to adopt a constitution and form 
a government for the Philippine Islands, to provide for 
the independence of the same, and for other purposes," 
returned by the President of the United States, with his 
objections, to the House of Representatives, in which it 
originated, it was 

Resolved, That the said bill pass, two-thirds of the 
House of Representatives agreeing to pass the same. 
Attest : 

South Trimble 

Clerk. 

In the Senate of the United States 
January 10 {calendar day, January 17) , 1933. 
The Senate having proceeded to reconsider the bill 
(H. R. 7233) entitled "An Act to enable the people of 
the Philippine Islands to adopt a constitution and form 
a government for the Philippine Islands, to provide for 
the independence of the same, and for other purposes," 



126 ENACTMENT 

returned by the President of the United States to the 
House of Representatives, in which it originated, with 
his objections, and passed by the House on a reconsid- 
eration of the same, it was 

RESOLVED, That the said bill pass, two-thirds of 
the Senators present having voted in the affirmative. 
Attest : 

Edwin P. Thayer 

Secretary. 



APPENDIX II 

[Public— No. 127— 73d Congress] 1 

[H.R. 8573] 

AN ACT 

To provide for the complete independence of the Philippine 
Islands, to provide for the adoption of a constitution and a form 
of government for the Philippine Islands, and for other 
purposes. 

Be it enacted by the Senate and House of Representa- 
tives of the United States of America in Congress 
assembled, 

CONVENTION TO FRAME CONSTITUTION FOR PHILIPPINE 

ISLANDS 

Section 1. The Philippine Legislature is hereby au- 
thorized to provide for the election of delegates to a 
constitutional convention, which shall meet in the hall 
of the house of representatives in the capital of the Phil- 
ippine Islands, at such time as the Philippine Legisla- 
ture may fix, but not later than October 1, 1934, to form- 
ulate and draft a constitution for the government of the 
Commonwealth of the Philippine Islands, subject to the 
conditions and qualifications prescribed in this Act, 
which shall exercise jurisdiction over all the territory 
ceded to the United States by the treaty of peace con- 
cluded between the United States and Spain on the 10th 
day of December 1898, the boundaries of which are set 
forth in article III of said treaty, together with those 
islands embraced in the treaty between Spain and the 
United States concluded at Washington on the 7th day 
of November 1900. The Philippine Legislature shall 
provide for the necessary expenses of such convention. 

1 This Act was accepted by the Philippine Legislature by a Concurrent 
Resolution of May 1, 1934. 

127 



128 PROVISIONS OF PHILIPPINE CONSTITUTION 

CHARACTER OF CONSTITUTION MANDATORY PROVISIONS 

Sec. 2. (a) The constitution formulated and drafted 
shall be republican in form, shall contain a bill of rights, 
and shall, either as a part thereof or in an ordinance ap- 
pended thereto, contain provisions to the effect that, 
pending the final and complete withdrawal of the sov- 
ereignty of the United States over the Philippine 
Islands — 

(1) All citizens of the Philippine Islands shall owe 
allegiance to the United States. 

(2) Every officer of the government of the Common- 
wealth of the Philippine Islands shall, before entering 
upon the discharge of his duties, take and subscribe an 
oath of office, declaring, among other things, that he 
recognizes and accepts the supreme authority of and will 
maintain true faith and allegiance to the United States. 

(3) Absolute toleration of religious sentiment shall 
be secured and no inhabitant or religious organization 
shall be molested in person or property on account of 
religious belief or mode of worship. 

(4) Property owned by the United States, cemeteries, 
churches, and parsonages or convents appurtenant there- 
to, and all lands, buildings, and improvements used ex- 
clusively for religious, charitable, or educational pur- 
poses shall be exempt from taxation. 

(5) Trade relations between the Philippine Islands 
and the United States shall be upon the basis prescribed 
in section 6. 

(6) The public debt of the Philippine Islands and its 
subordinate branches shall not exceed limits now or 
hereafter fixed by the Congress of the United States; 
and no loans shall be contracted in foreign countries 
without the approval of the President of the United 
States. 

(7) The debts, liabilities, and obligations of the pres- 
ent Philippine government, its Provinces, municipalities, 
and instrumentalities, valid and subsisting at the time 
of the adoption of the constitution, shall be assumed and 
paid by the new government. 

(8) Provision shall be made for the establishment and 
maintenance of an adequate system of public schools, 
primarily conducted in the English language. 



APPROVAL OF CONSTITUTION" 129 

(9) Acts affecting currency, coinage, imports, exports, 
and immigration shall not become law until approved by 
the President of the United States. 

(10) Foreign affairs shall be under the direct super- 
vision and control of the United States. 

(11) All acts passed by the Legislature of the Com- 
monwealth of the Philippine Islands shall be reported to 
the Congress of the United States. 

(12) The Philippine Islands recognizes the right of 
the United States to expropriate property for public uses, 
to maintain military and other reservations and armed 
forces in the Philippines, and, upon order of the Presi- 
dent, to call into the service of such armed forces all 
military forces organized by the Philippine government. 

(13) The decisions of the courts of the Commonwealth 
of the Philippine Islands shall be subject to review by 
the Supreme Court of the United States as provided in 
paragraph (6) of section 7. 

(14) The United States may, by Presidential procla- 
mation, exercise the right to intervene for the preserva- 
tion of the government of the Commonwealth of the 
Philippine Islands and for the maintenance of the gov- 
ernment as provided in the constitution thereof, and for 
the protection of life, property, and individual liberty 
and for the discharge of government obligations under 
and in accordance with the provisions of the constitu- 
tion. 

(15) The authority of the United States High Com- 
missioner to the government of the Commonwealth of 
the Philippine Islands, as provided in this Act, shall be 
recognized. 

(16) Citizens and corporations of the United States 
shall enjoy in the Commonwealth of the Philippine Is- 
lands all the civil rights of the citizens and corporations, 
respectively, thereof. 

(b) The constitution shall also contain the following 
provisions, effective as of the date of the proclamation 
of the President recognizing the independence of the 
Philippine Islands, as hereinafter provided: 

(1) That the property rights of the United States and 
the Philippine Islands shall be promptly adjusted and 
settled, and that all existing property rights of citizens 
or corporations of the United States shall be acknowl- 
edged, respected, and safeguarded to the same extent as 
property rights of citizens of the Philippine Islands. 



130 SUBMISSION OF CONSTITUTION 

(2) That the officials elected and serving under the 
constitution adopted pursuant to the provisions of this 
Act shall be constitutional officers of the free and inde- 
pendent government of the Philippine Islands and qual- 
ified to function in all respects as if elected directly 
under such government, and shall serve their full terms 
of office as prescribed in the constitution. 

(3) That the debts and liabilities of the Philippine 
Islands, its Provinces, cities, municipalities, and instru- 
mentalities, which shall be valid and subsisting at the 
time of the final and complete withdrawal of the sover- 
eignty of the United States, shall be assumed by the free 
and independent government of the Philippine Islands; 
and that where bonds have been issued under authority 
of an Act of Congress of the United States by the Phil- 
ippine Islands, or any Province, city, or municipality 
therein, the Philippine government will make adequate 
provision for the necessary funds for the payment of 
interest and principal, and such obligations shall be a 
first lien on the taxes collected in the Philippine Islands. 

(4) That the government of the Philippine Islands, on 
becoming independent of the United States, will assume 
all continuing obligations assumed by the United States 
under the treaty of peace with Spain ceding said Philip- 
pine Islands to the United States. 

(5) That by way of further assurance the government 
of the Philippine Islands will embody the foregoing 
provisions (except paragraph (2)) in a treaty with the 
United States. 

SUBMISSION OF CONSTITUTION TO THE PRESIDENT OF THE 

UNITED STATES 

Sec. 3. Upon the drafting and approval of the con- 
stitution by the constitutional convention in the Philip- 
pine Islands, the constitution shall be submitted within 
two years after the enactment of this Act to the President 
of the United States, who shall determine whether or 
not it conforms with the provisions of this Act. If the 
President finds that the proposed constitution conforms 
substantially with the provisions of this Act he shall so 
certify to the Governor General of the Philippine 
Islands, who shall so advise the constitutional conven- 
tion. If the President finds that the constitution does 
not conform with the provisions of this Act he shall so 



SUBMISSION OP CONSTITUTION 131 

advise the Governor General of the Philippine Islands, 
stating wherein in his judgment the constitution does 
not so conform and submitting provisions which will in 
his judgment make the constitution so conform. The 
Governor General shall in turn submit such message to 
the constitutional convention for further action by them 
pursuant to the same procedure hereinbefore defined, 
until the President and the constitutional convention are 
in agreement. 

SUBMISSION OF CONSTITUTION TO FILIPINO PEOPLE 

Sec. 4. After the President of the United States has 
certified that the constitution conforms with* the provi- 
sions of this Act, it shall be submitted to the people of 
the Philippine Islands for their ratification or rejection 
at an election to be held within four months after the 
date of such certification, on a date to be fixed by the 
Philippine Legislature, at which election the qualified 
voters of the Philippine Islands shall have an opportun- 
ity to vote directly for or against the proposed consti- 
tution and ordinances appended thereto. Such election 
shall be held in such manner as may be prescribed by 
the Philippine Legislature, to which the return of the 
election shall be made. The Philippine Legislature shall 
by law provide for the canvassing of the return and 
shall certify the result to the Governor General of the 
Philippine Islands, together with a statement of the 
votes cast, and a copy of said constitution and ordi- 
nances. If a majority of the votes cast shall be for the 
constitution, such vote shall be deemed an expression of 
the will of the people of the Philippine Islands in favor 
of Philippine independence, and the Governor General 
shall, within thirty days after receipt of the certification 
from the Philippine Legislature, issue a proclamation 
for the election of officers of the government of the Com- 
monwealth of the Philippine Islands provided for in the 
constitution. The election shall take place not earlier 
than three months nor later than six months after the 
proclamation by the Governor General ordering such 
election. When the election of the officers provided for 
under the constitution has been held and the results de- 
termined, the Governor General of the Philippine Islands 
shall certify the results of the election to the Presi- 
dent of the United States, who shall thereupon issue 



132 PROPERTY AND OTHER RELATIONS 

a proclamation announcing the results of the election, 
and upon the issuance of such proclamation by the Pres- 
ident the existing Philippine government shall terminate 
and the new government shall enter upon its rights, priv- 
ileges, powers, and duties, as provided under the con- 
stitution. The present government of the Philippine 
Islands shall provide for the orderly transfer of the 
functions of government. 

If a majority of the votes cast are against the constitu- 
tion, the existing government of the Philippine Islands 
shall continue without regard to the provisions of this 
Act. 

TRANSFER OF PROPERTY AND RIGHTS TO PHILIPPINE 
COMMONWEALTH 

Sec. 5. All the property and rights which may have 
been acquired in the Philippine Islands by the United 
States under the treaties mentioned in the first section 
of this Act, except such land or other property as has 
heretofore been designated by the President of the 
United States for Military and other reservations of the 
Government of the United States, and except such land 
or other property or rights or interest therein as may 
have been sold or otherwise disposed of in accordance 
with law, are hereby granted to the government of 
the Commonwealth of the Philippine Islands when 
constituted. 

RELATIONS WITH THE UNITED STATES PENDING COMPLETE 

INDEPENDENCE 

Sec. 6. After the date of the inauguration of the gov- 
ernment of the Commonwealth of the Philippine Islands 
trade relations between the United States and the Phil- 
ippine Islands shall be as now provided by law, subject 
to the following exceptions : 

(a) There shall be levied, collected, and paid on all 
refined sugars in excess of fifty thousand long tons, and 
on unrefined sugars in excess of eight hundred thousand 
long tons, coming into the United States from the Phil- 
ippine Islands in any calendar year, the same rates of 
duty which are required by the laws of the United States 
to be levied, collected, and paid upon like articles im- 
ported from foreign countries. 



DUTIABLE AETICLES 133 

(b) There shall be levied, collected, and paid on all 
coconut oil coming into the United States from the 
Philippine Islands in any calendar year in excess of two 
hundred thousand long tons, the same rates of duty 
which are required by the laws of the United States to 
be levied, collected, and paid upon like articles imported 
from foreign countries. 

(c) There shall be levied, collected, and paid on all 
yarn, twine, cord, cordage, rope and cable, tarred or un- 
tarred, wholly or in chief value of manila (abaca) or 
other hard fibers, coming into the United States from 
the Philippine Islands in any calendar year in excess of 
a collective total of three million pounds of all such ar- 
ticles hereinbefore enumerated, the same rates of duty 
which are required by the laws of the United States to 
be levied, collected, and paid upon like articles imported 
from foreign countries. 

(d) In the event that in any year the limit in the case 
of any article which may be exported to the United 
States free of duty shall be reached by the Philippine 
Islands, the amount or quantity of such articles produced 
or manufactured in the Philippine Islands thereafter 
that may be so exported to the United States free of 
duty shall be allocated, under export permits issued by 
the government of the Commonwealth of the Philippine 
Islands, to the producers or manufacturers of such ar- 
ticles proportionately on the basis of their exportation 
to the United States in the preceding year; except that 
in the case of unrefined sugar the amount thereof to be 
exported annually to the United States free of duty shall 
be allocated to the sugar-producing mills of the islands 
proportionately on the basis of their average annual pro- 
duction for the calendar years 1931, 1932, and 1933, and 
the amount of sugar from each mill which may be so 
exported shall be allocated in each year between the mill 
and the planters on the basis of the proportion of sugar 
to which the mill and the planters are respectively en- 
titled. The government of the Philippine Islands is 
authorized to adopt the necessary laws and regulations 
for putting into effect the allocation hereinbefore pro- 
vided. 

(e) The government of the Commonwealth of the 
Philippine Islands shall impose and collect an export 
tax on all articles that may be exported to the United 
States from the Philippine Islands free of duty under 



134 DUTIES AND TAXES 

the provisions of existing law as modified by the fore- 
going provisions of this section, including the articles 
enumerated in subdivisions (a), (b), and (c), within the 
limitations therein specified, as follows: 

(1) During the sixth year after the inauguration of 
the new government the export tax shall be 10 per centum 
of the rates of duty which are required by the laws of the 
United States to be levied, collected, and paid on like 
articles imported from foreign countries; 

(2) During the seventh year after the inauguration of 
the new government the export tax shall be 10 per centum 
of the rates of duty which are required by the laws of the 
United States to be levied, collected, and paid on like 
articles imported from foreign countries; 

(3) During the eighth year after the inauguration of 
the new government the export tax shall be 15 per cen- 
tum of the rates of duty which are required by the laws 
of the United States to be levied, collected, and paid on 
like articles imported from foreign countries; 

(4) During the ninth year after the inauguration of 
the new government the export tax shall be 20 per 
centum of the rates of duty which are required by the 
laws of the United States to be levied, collected, and 
paid on like articles imported from foreign countries ; 

(5) After the expiration of the ninth year after the 
inauguration of the new government the export tax 
shall be 25 per centum of the rates of duty which are 
required by the laws of the United States to be levied, 
collected, and paid on like articles imported from foreign 
countries. 

The government of the Commonwealth of the Philip- 
pine Islands shall place all funds received from such 
export taxes in a sinking fund, and such funds shall, in 
addition to other moneys available for that purpose, 
be applied Solely to the payment of the principal and 
interest on the bonded indebtedness of the Philippine 
Islands, its Provinces, municipalities, and instrumental- 
ities, until such indebtedness has been fully discharged. 

When used in this section in a geographical sense, the 
term " United States " includes all Territories and pos- 
sessions of the United States, except the Philippine 
Islands, the Virgin Islands, American Samoa, and the 
island of Guam. 

Sec. 7. Until the final and complete withdrawal of 
American sovereignty over the Philippine Islands — 



TEMPORARY ADMINISTRATION 135 

(1) Every duly adopted amendment to the constitu- 
tion of the government of the Commonwealth of the 
Philippine Islands shall be submitted to the President 
of the United States for approval. If the President 
approves the amendment or if the President fails to dis- 
approve such amendment within six months from the 
time of its submission, the amendment shall take effect 
as a part of such constitution. 

(2) The President of the United States shall have au- 
thority to suspend the taking effect of or the operation 
of any law, contract, or executive order of the govern- 
ment of the Commonwealth of the Philippine Islands, 
which in his judgment will result in a failure of the gov- 
ernment of the Commonwealth of the Philippine Islands 
to fulfill its contracts, or to meet its bonded indebtedness 
and interest thereon or to provide for its sinking funds, 
or which seems likely to impair the reserves for the pro- 
tection of the currency of the Philippine Islands, or 
which in his judgment will violate international obliga- 
tions of the United States. 

(3) The Chief Executive of the Commonwealth of the 
Philippine Islands shall make an annual report to the 
President and Congress of the United States of the pro- 
ceedings and operations of the government of the Com- 
monwealth of the Philippine Islands and shall make 
such other reports as the President or Congress may 
request. 

(4) The President shall appoint, by and with the 
advice and consent of the Senate, a United States High 
Commissioner to the government of the Commonwealth 
of the Philippine Islands who shall hold office at the 
pleasure of the President and until his successor is ap- 
pointed and qualified. He shall be known as the United 
States High Commissioner to the Philippine Islands, 
He shall be the representative of the President of the 
United States in the Philippine Islands and shall be 
recognized as such by the government of the Common- 
wealth of the Philippine Islands, by the commanding 
officers of the military forces of the United States, and 
by all civil officials of the United States in the Philip- 
pine Islands. He shall have access to all records of the 
government or any subdivision thereof, and shall be fur- 
nished by the Chief Executive of the Commonwealth of 
the Philippine Islands with such information as he shall 
request. 



136 TEMPORARY ADMINISTRATION 

If the government of the Commonwealth of the Philip- 
pine Islands fails to pay any of its bonded or other in- 
debtedness or the interest thereon when due or to fulfill 
any of its contracts, the United States High Commis- 
sioner shall immediately report the facts to the Presi- 
dent, who may thereupon direct the High Commissioner 
to take over the customs offices and administration of the 
same, administer the same, and apply such part of the 
revenue received therefrom as may be necessary for the 
payment of such overdue indebtedness or for the fulfill- 
ment of such contracts. The United States High Com- 
missioner shall annually, and at such other times as the 
President may require, render an official report to the 
President and Congress of the United States. He shall 
perform such additional duties and functions as may be 
delegated to him from time to time by the President 
under the provisions of this Act. 

The United States High Commissioner shall receive 
the same compensation as is now received by the Gov- 
ernor General of the Philippine Islands, and shall have 
such staff and assistants as the President may deem ad- 
visable and as may be appropriated for by Congress, in- 
cluding a financial expert, who shall receive for submis- 
sion to the High Commissioner a duplicate copy of the 
reports of the insular auditor. Appeals from decisions 
of the insular auditor may be taken to the President of 
the United States. The salaries and expenses of the 
High Commissioner and his staff and assistants shall be 
paid by the United States. 

The first United States High Commissioner appointed 
under this Act shall take office upon the inauguration 
of the new government of the Commonwealth of the 
Philippine Islands. 

(5) The government of the Commonwealth of the 
Philippine Islands shall provide for the selection of a 
Resident Commissioner to the United States, and shall 
fix his term of office. He shall be the representative of 
the government of the Commonwealth of the Philippine 
Islands and shall be entitled to official recognition as 
such by all departments upon presentation to the Presi- 
dent of credentials signed by the Chief Executive of 
said government. He shall have a seat in the House of 
Representatives of the United States, with the right of 
debate, but without the right of voting. His salary and 
expenses shall be fixed and paid by the government of 



IMMIGRATION 137 

the Philippine Islands. Until a Resident Commissioner 
is selected and qualified under this section, existing law 
governing the appointment of Resident Commissioners 
from the Philippine Islands shall continue in effect. 

(6) Review by the Supreme Court of the United 
States of cases from the Philippine Islands shall be as 
now provided by law ; and such review shall also extend 
to all cases involving the constitution of the Common- 
wealth of the Philippine Islands. 

Sec. 8. (a) Effective upon the acceptance of this Act 
by concurrent resolution of the Philippine Legislature 
or by a convention called for that purpose, as provided 
in section 17 — 

(1) For the purposes of the Immigration Act of 1917, 
the Immigration Act of 1924 (except section 13(c) ), this 
section, and all other laws of the United States relating 
to the immigration, exclusion, or expulsion of aliens, cit- 
izens of the Philippine Islands who are not citizens of 
the United States shall be considered as if they were 
aliens. For such purposes the Philippine Islands shall 
be considered as a separate country and shall have for 
each fiscal year a quota of fifty. This paragraph shall 
not apply to a person coming or seeking to come to the 
Territory of Hawaii who does not apply for and secure 
an immigration or passport visa, but such immigration 
shall be determined by the Department of the Interior 
on the basis of the needs of industries in the Territory 
of Hawaii. 

(2) Citizens of the Philippine Islands who are not 
citizens of the United States shall not be admitted to the 
continental United States from the Territory of Hawaii 
(whether entering such Territory before or after the 
effective date of this section) unless they belong to a 
class declared to be nonimmigrants by section 3 of the 
Immigration Act of 1924 or to a class declared to be 
nonquota immigrants under the provisions of section 4 
of such Act other than subdivision (c) thereof, or unless 
they were admitted to such Territory under an immigra- 
tion visa. The Secretary of Labor shall by regulations 
provide a method for such exclusion and for the admis- 
sion of such excepted classes. 

(3) Any Foreign Service officer may be assigned to 
duty in the Philippine Islands, under a commission as a 
consular officer, for such period as may be necessary and 
under such regulations as the Secretary of State may 



138 RECOGNITION OF INDEPENDENCE 

prescribe, during which assignment such officer shall be 
considered as stationed in a foreign country; but his 
powers and duties shall be confined to the performance 
of such of the official acts and notarial and other services, 
which such officer might properly perform in respect of 
the administration of the immigration laws if assigned 
to a foreign country as a consular officer, as may be 
authorized by the Secretary of State. 

(4) For the purposes of sections 18 and 20 of the Im- 
migration Act of 1917, as amended, the Philippine 
Islands shall be considered to be a foreign country. 

(b) The provisions of this section are in addition to 
the provisions of the immigration laws now in force, and 
shall be enforced as a part of such laws, and all the 
penal or other provisions of such laws not inapplicable, 
shall apply to and be enforced in connection with the 
provisions of this section. An alien, although admissible 
under the provisions of this section, shall not be admitted 
to the United States if he is excluded by any provision 
of the immigration laws other than this section, and an 
alien, although admissible under the provisions of the 
immigration laws other than this section, shall not be 
admitted to the United States if he is excluded by any 
provision of this section. 

(c) Terms defined in the Immigration Act of 1924 
shall, when used in this section, have the meaning as- 
signed to such terms in that Act. 

Sec. 9. There shall be no obligation on the part of 
the United States to meet the interest or principal of 
bonds and other obligations of the government of the 
Philippine Islands or of the Provincial and municipal 
governments thereof, hereafter issued during the contin- 
uance of United States sovereignty in the Philippine 
Islands : Provided, That such bonds and obligations here- 
after issued shall not be exempt from taxation in the 
United States or by authority of the United States. 

RECOGNITION OF PHILIPPINE INDEPENDENCE AND WITH- 
DRAWAL OF AMERICAN SOVEREIGNTY 

Sec. 10. (a) On the 4th day of July immediately fol- 
lowing the expiration of a period of ten years from the 
date of the inauguration of the new government under 
the constitution provided for in this Act the President 
of the United States shall by proclamation withdraw and 



NEUTRALIZATION 139 

surrender all right of possession, supervision, jurisdic- 
tion, control, or sovereignty then existing and exercised 
by the United States in and over the territory and people 
of the Philippine Islands, including all military and 
other reservations of the Government of the United 
States in the Philippines (except such naval reservations 
and fueling stations as are reserved under section 5), and, 
on behalf of the United States, shall recognize the inde- 
pendence of the Philippine Islands as a separate and 
self-governing nation and acknowledge the authority and 
control over the same of the government instituted by 
the people thereof, under the constitution then in force, 
(b) The President of the United States is hereby au- 
thorized and empowered to enter into negotiations with 
the government of the Philippine Islands, not later than 
two years after his proclamation recognizing the inde- 
pendence of the Philippine Islands, for the adjustment 
and settlement of all questions relating to naval reserva- 
tions and fueling stations of the United States in the 
Philippine Islands, and pending such adjustment and 
settlement the matter of naval reservations and fueling 
stations .shall remain in its present status. 

NEUTRALIZATION OF PHILIPPINE ISLANDS 

Sec. 11. The President is requested, at the earliest 
practicable date, to enter into negotiations with foreign 
powers with a view to the conclusion of a treaty for the 
perpetual neutralization of the Philippine Islands, if 
and when Philippine independence shall have been 
achieved. 

NOTIFICATION TO FOREIGN GOVERNMENTS 

Sec. 12. Upon the proclamation and recognition of 
the independence of the Philippine Islands, the Presi- 
dent shall notify the governments with which the United 
States is in diplomatic correspondence thereof and invite 
said governments to recognize the independence of the 
Philippine Islands. 

TARIFF DUTIES AFTER INDEPENDENCE 

Sec. 13. After the Philippine Islands have become a 
free and independent nation there shall be levied, col- 

73500—34 10 



140 STATUTES CONTINUED 

lected, and paid upon all articles coming into the United 
States from the Philippine Islands the rates of duty 
which are required to be levied, collected, and paid upon 
like articles imported from other foreign countries : Pro- 
vided, That at least one year prior to the date fixed in 
this Act for the independence of the Philippine Islands, 
there shall be held a- conference of representatives of the 
Government of the United States and the government of 
the Commonwealth of the Philippine Islands, such rep- 
resentatives to be appointed by the President of the 
United States and the Chief Executive of the Common- 
wealth of the Philippine Islands, respectively, for the 
purpose of formulating recommendations as to future 
trade relations between the Government of the United 
States and the independent government of the Philip- 
pine Islands, the time, place, and manner of holding such 
conference to be determined by the President of the 
United States; but nothing in this proviso shall be con- 
strued to modify or affect in any way any provision of 
this Act relating to the procedure leading up to Philip- 
pine independence or the date upon which the Philippine 
Islands shall become independent. 

IMMIGRATION AFTER INDEPENDENCE 

Sec. 14. Upon the final and complete withdrawal of 
American sovereignty over the Philippine Islands the 
immigration laws of the United States (including all the 
provisions thereof relating to persons ineligible to citi- 
zenship) shall apply to persons who were born in the 
Philippine Islands to the same extent as in the case of 
other foreign countries. 

CERTAIN STATUTES CONTINUED IN FORCE 

Sec. 15. Except as in this Act otherwise provided, the 
laws now or hereafter in force in the Philippine Islands 
shall continue in force in the Commonwealth of the Phil- 
ippine Islands until altered, amended, or repealed by 
the Legislature of the Commonwealth of the Philippine 
Islands or by the Congress of the United States, and 
all references in such laws to the government or offi- 
cials of the Philippines or Philippine Islands shall be 
construed, insofar as applicable, to refer to the govern- 
ment and corresponding officials respectively of the Com- 



EFFECTIVE DATE 141 

monwealth of the Philippine Islands. The government 
of the Commonwealth of the Philippine Islands shall 
be deemed successor to the present government of the 
Philippine Islands and of all the rights and obligations 
thereof. Except as otherwise provided in this Act, all 
laws or parts of laws relating to the present government 
of the Philippine Islands and its administration are 
hereby repealed as of the date of the inauguration of 
the government of the Commonwealth of the Philip- 
pine Islands. 

Sec. 16. If any provision of this Act is declared un- 
constitutional or the applicability thereof to any person 
or circumstance is held invalid, the validity of the re- 
mainder of the Act and the applicability of such provi- 
sions to other persons and circumstances shall not be 
affected thereby. 

EFFECTIVE DATE 

Sec. IT. The foregoing provisions of this Act shall 
not take effect until accepted by concurrent resolution 
of the Philippine Legislature or by a convention called 
for the purpose of passing upon that question as may be 
provided by the Philippine Legislature. 

Approved, March 24, 1934. 



INDEX 

Page 

Aaland Islands, neutralization of 57 

Absolute contraband (see also Contraband) 7,42 

Aerial law and maritime law 62 

Aerial navigation 64 

Convention, 1919 58 

Aerial warfare 65 

Aggression 76 

Aircraft : 

Civil 58 

Due diligence as to 63 

Hospital 63 

In neutral jurisdiction 59, 65, 68 

Internment of 67 

Licensing of 68 

Military, belligerent 60 

On board warships 65 

Aircraft carriers 65 

American Red Cross 25 

Amphion, the 101 

Argentine Republic 94 

Straits of Magellan 86 

Armed neutrality, 1780 and 1800 44 

Austria, annexation of Cracow 50 

Austria-Hungary : 

Belgian neutrality 53 

Blockade of Montenegro 36 

Balloons, gas for_ 64 

Belgian dependencies, neutralization of 53 

Belgium : 

Neutralization and treaties of 1870 51 

Neutralization by treaty of 1831 51 

Violation of territory of 52, 67 

" Besieged, blocked, or invested " 27 

Blacklists 38 

Black Sea Straits 84 

143 



144 INDEX 

i 

Page 

Blockade 91 

Declaration of London 29, 45 

Early 28 

Notification of 28 

Proclaimed during World War 36 

Bolivia, war with Paraguay, 1933 94 

Brazil : 

Neutrality declaration, 1933 *. 94 

Sojourn of belligerent vessels in ports of 69 

Treaty with United States, 1928 6 

British Empire, maintenance of status quo in Pacific posses- 
sions 54 

Buena Ventura, the 93 

Bynkershoek 79 

Canada, Customs Act, 1927 80 

Chile: 

Jurisdiction over Straits of Magellan 86 

Neutrality decree, 1914 87 

Neutrality decree, 1933 94 

Civil population : 

Armed forces 19, 26 

Mobilization of 27 

Commercen, the 27 

Commission of Jurists, 1923 

On aerial warfare 64 

On aircraft 60, 65, 69 

On radio in war 99 

Conditional contraband 7, 42, 62 

Continuous voyage 21 

Contraband : 

Absolute 7, 12, 42 

American treaties 6 

Conditional 7, 42, 62 

Definition of 26 

Distinctions between classes of 16, 20, 25 

Early attitude toward 2 

Lists of, changes during World War 10 

Declaration of London 7 

Effect of changing conditions on 26, 44 

United States' attitude toward 5 



INDEX 145 

Page 

Contrabandum 2 

Convention of Constantinople, 1888 56 

Cracow, free city of 50 

Croft v. Dunphy 82 

Cnnard 8. S. Co. v. Mellon 80 

Dardanelles and Bosphorus 85 

Declaration of London 42 

Blockade 29', 45 

Contraband lists 7, 10 

Turco-Italian War, 1911-12 9 

United States attitude toward 10, 31, 34 

Declaration of Paris 28, 42 

Destination 19, 21, 27, 33 

Due diligence 63 

Embargoes 37, 38 

Enemy destination (see also Destination) 4,35 

Enemy origin 35 

Export prohibitions 37 

Finland, and Aaland Islands 58 

Foodstuffs, as contraband 12,18,33,43 

France : 

Attitude toward exemption of hospital supplies 24 

Blockade of Greece 37 

Free ships, free goods 5 

Fuca's Straits 83 

Gentilis 4 

Germany : 

Attitude toward hydroplanes, 1915 61 

Embargoes, 1914 39 

Government control of foodstuffs during war 19 

Ordinance exempting hospital supplies 24 

Use of mines in World War 100, 104 

Violation of Belgian territory 51, 67 

War zone proclamation 17, 41, 104 

Great Britain : 

Attitude toward exemption of hospital supplies 25 

Blockade of the Cameroons 36 

Export prohibitions, 1914 and 1915 38 



146 INDEX 

Great Britain — Continued. Page 

On laying of mines by Germany 101 

Order in Council, August 20, 1914 31 

Order in Council, March 11, 1915 35 

Order in Council, February 16, 1917 35 

Pact of Paris, and 78 

Suggested modifications of Declaration of London 11 

Treaty with United States, 1846 83 

Grotius 4 

Hague Convention, III 94 

Making of 97 

Hague Convention, V 44 

Hague Convention, VIII_ 99 

Hague Convention, XIII 61 

Hospital aircraft 63 

Hospital supplies, exemption of 23, 24 

Hostilities, commencement of 93, 95, 97 

Hovering j, 81 

Hydroplanes, as war vessels 61 

Institute of International Law : 

On commencement of hostilities 93 

On declaration of war 97 

On straits 84 

International law: 

Municipal law and 40 

Violation of 53, 105 

International Law Association 89 

Interment 67,71 

Japan : 

Blockade of Kiao-Chau 36 

Maintenance of status quo in the Pacific 54 

Kim, the 20 

Lausanne Conference: Regime of Straits 86 

League of Nations : 

Committee, on territorial waters 88 

Council 57 

Covenant 76 



INDEX 147 

Page 

Limitation of Naval Armament Treaty, 1922 54 

Luxemburg, neutralization of 51 

Maritime jurisdiction 79 

Customs 80 

Three-mile limit 57, 80, 90 

Six-mile limit 80 

Twelve-mile limit 81 

Maritime law, and aerial law 62 

" Means at its disposal ", neutral government 63 

Mines, laying of 99 

United States proposals regarding 104 

Naval bases 54, 56 

Neutral jurisdiction, aircraft 59, 63, 65, 68 

Neutral rights 32, 44, 102 

Retaliation and 41 

United States and 14, 30, 42 

Neutral trade: 

Belligerent restriction of . 18 

Early restrictions on 3 

Interference with 22, 34, 42 

Neutral port, sojourn in 69 

Neutral waters, seaplanes in 59 

Neutrality 43 

Neutralization : 

Agreements 49 

Of Aaland Islands 57 

Of Belgium 51 

Of Luxemburg 51 

Of Panama Canal 56 

Of Philippine Islands 49, 54, 70, 123, 139 

Of Switzerland 50 

Nicaragua 91 

Olinde Rodrigues, the 29 

Pact of Paris, history of 75 

Panama Canal, neutralization of 56 

Panama Canal Zone, aircraft in 66 

Paper blockades 29, 32 

Paraguay, declaration of war with Bolivia, 1933 94 

Peru 94 



148 INDEX 

Philippine Islands : Page 

American commitments in : 55 

Independence of 47, 70 

Neutralization of 49, 54, 71, 123, 139 

United States act to frame constitution for, January 

17, 1933 48, 54, 56, 70, 111 

United States act to frame constitution for, March 24, 

1934 127 

Ports, closure of 91 

Prohibited areas 3 

Radio : 

In time of peace 98 

In time of war 99, 107 

Renunciation of war, treaty for. (See Pact of Paris.) 

Reprisals 22, 35 

Retaliation j 39, 41 

River, neutral, transit of 45, 95 

Russo-Japanese War 67, 85 

Sanctions : 76 

Schucking, Dr 88 

Seaplanes 59, 71 

Self-defense 78 

Seneca 5 

Sovereignty 18 

Spaight, J. M 68 

Status quo, in Pacific area 54 

Strained relations 74 

Straits 73, 82 

Black Sea 3, 84 

Closure of 92, 107 

Commission of the 85 

Dardanelles and Bosphorus 85 

Fuca's 83 

In peace and war 73 

Jurisdiction over 82, 84, 88 

League of Nations committee on 88 

Of Gibraltar 92 

Of Magellan 86 

Submarines 104 

Suez Canal 56 



INDEX 149 

Switzerland : Page 

Control of air space 66 

Neutralization of 50 

Territorial waters (see also Maritime Jurisdiction, Straits) 

of Canada 81 

Thalweg i 89 

Three-mile limit. (See Maritime jurisdiction.) 

Torpedoes 100 

Treaty of Sevres, control of the Straits 85 

Treaty of Vienna, 1815 50 

Turco-Italian War, 1911-12 9 

Turkey and " Straits question " 85 

Twenty-four-hour rule 57, 69 

Ultimate destination (see also Destination) 20 

Union of Soviet Socialist Republics, and Pact of Paris 77 

United States : 

Attitude toward Declaration of London in 1914 10, 31 

Attitude toward German mine laying 101 

Attitude toward hydroplanes 61 

Early attitude toward contraband 5 

Maintenance of status quo in Pacific area 54 

Philippine independence, act granting: 

January 17, 1933 48, 54, 56, 70, 111 

March 24, 1934 127 

Proclamation regarding aircraft in Panama Canal Zone_ 66 

Proclamation regarding licensing of aircraft 68 

Proposal as to use of mines in World War 104 

Treaty with Brazil, 1828 6 

Treaty with Great Britain, 1846 83 

Treaty with Spain, 1898 55 

Use of force 96 

Vessels : 

Neutral 41 

War, hydroplane as 61 

War (see also Hostilities) : 

Declaration of 92, 94, 97 

Distinction between hostilities 98 

Of aggression 70 



150 INDEX 

Page 

War zone, German proclamation 17, 41, 104 

Washington Conference, 1921-22 54 

Water boundaries 82 

World War: 

Aircraft at outbreak of 67 

Changes in contraband list 10 

Zamora, the 39 

o